Freeland, Steven --- "The Agreement That Wasn't - The Copenhagen Climate Change Conference and Beyond" [2010] ALRS 9

Last Updated: 16 September 2011

The Agreement That Wasn’t – The Copenhagen Climate Change Conference and Beyond

Professor Steven Freeland, Law School, University of Western Sydney

March 2010

Introduction

Between 7 and 19 December 2009, the 15th Conference of Parties to the United Nations Framework Convention on Climate Change (UNFCCC) was held in Copenhagen, Denmark (COP15). In the lead up to COP15, there was great anticipation as to what would be achieved at the meeting by the broad global community and, indeed, what needed to be achieved, in order to properly address the threats posed by changes to the world’s climate.

COP15 was seen by commentators as the final culmination to many years of negotiations, starting in 1992 with the conclusion of the UNFCCC at the Rio Earth Summit, through 1997 and the finalization of the Kyoto Protocol to the UNFCCC (Kyoto Protocol), and incorporating the 2007 Bali Action Plan, which mandated Parties to the UNFCCC to reach agreement by the end of COP15 on a range of key areas, including the quantification of binding emissions reduction targets for the second commitment period under the Kyoto Protocol, commencing in 2013.

The stakes were high and the world was watching. Many hoped that the Copenhagen Conference would ‘seal a deal’. As the months and weeks leading up to COP15 passed by, there was almost unprecedented media coverage of all aspects of the climate change debate. It was (quite understandably) impossible to listen to any news program without a reference to climate change and the range of opinions relating to the proposed actions that were required to address it. In Australia, the Rudd Government had positioned itself as a ‘Friend of the Chair’ of COP15 and, increasingly desperately, sought agreement with the opposition parties, in order to secure passage of its ETS legislation prior to COP15. In the end, however, those efforts failed (as they did in other countries, including the United States) and, as collateral damage, the leadership of the Liberal Party changed.

Similar discussions were taking place in many other countries of the world, as developed countries, developing countries, the least developed countries and island developing States all grappled with their respective policies and strategies to take to Copenhagen. What was clear, however, was that, as the anticipation leading to Copenhagen grew, so did the expectations by many parts of civil society that the world’s nations would, at last, reach a binding agreement that comprehensively met the issues facing them head on. Even before the first delegates arrived in the Danish capital, some had dubbed the Conference ‘Hopenhagen’, believing that COP15 would be a turning point in the battle against the adverse impacts of climate change.

Indeed, in the week before the commencement of COP15, a colleague in Copenhagen sent me a wonderfully written eight page ‘mock up’ of the International Herald Tribune, prepared by Greenpeace and post-dated 19 December 2009, which lead with the front page article ‘Heads of state agree historic climate-saving deal’. In the light of events as they actually transpired, both during and after COP15, that ‘publication’ makes for fascinating and poignant reading.

No doubt also, the election of the new Obama administration in the United States, which (at least outwardly) appeared to far more readily embrace the need for tangible action to address the impacts of climate change than its predecessor, added to expectations that COP15 would represent a major turning point towards a global and cooperative approach.

However, as one after another of the various pre-COP15 negotiations ended without significant progress, certain (mainly industrialised) countries began to issue warnings that perhaps only a ‘politically binding’ (as opposed to legally binding) agreement would be achievable in Copenhagen. Others, took an even more pessimistic view, with some commentators suggesting that ‘something rotten awaits us in the Kingdom of Denmark’ (with due apologies to Shakespeare).

The Implications of Not Reaching an Agreement at COP15

Much has been written about the tangible effects of climate change. Although a significant part of the debate has centred around whether the change in the Earth’s temperature is (at least partially) due to the actions of humankind, or is a totally natural phenomena – with the large majority of experts subscribing to the former view – there is almost universal agreement that the climate is changing, and that this has significant negative implements for many States and populations. This relates not only to the increase in destructive weather events, the reduction of arable land, the rising level of the oceans, the spread of disease and the uncertainties for agriculture; it also has vast economic costs, both in terms of adapting to such impacts and also dealing with the adverse consequences that they bring.

Indeed, these predicted consequences, which have already been borne out by recent events, have been a regular feature in the debate thus far and, in and of themselves, already provide more than sufficient justification for the need to agree on concrete and appropriate actions on a global basis.

However, it has only been relatively recently that the debate has been broadened – primarily by the developing countries – to incorporate the devastating effects of climate change on the human rights of many people. Reports by both the Intergovernmental Panel on Climate Change (IPCC) and other agencies within the United Nations have clearly shown how rising sea levels, changing weather patterns and other climate-related impacts significantly threaten fundamental rights such as the right to life, the right to food, the right to water, the right to health, the right to adequate housing and the self-determination rights of indigenous peoples. While there may be some arguments around the edges of this debate as to the precise extent of these impacts, no-one can dispute with any credibility that this is already taking place.

Even more significantly, it is widely agreed that climate change is itself a threat to international peace and security, the maintenance of which represents one of the underlying purposes of the United Nations itself. The United Nations High Commission for Human Rights has estimated that the combined effects of climate change and other economic, social and political problems, could lead to a heightened risk of conflict in 46 countries, particularly in the areas prone to the adverse impacts of climate change in sub-Saharan Africa, Asia and Latin America. Many military leaders have argued that the environmental impacts of climate change constitutes a ‘threat multiplier’ in fragile parts of the world, exacerbating conditions that lead to failed states, which then represent fertile breeding grounds for extremism and terrorism.

Indeed, climate change related impacts and the increased incidence of drought in Sudan were significant factors leading to the genocide that is currently taking place in Darfur and the instability in Somalia.

In addition, the United Nations High Commissioner for Refugees has recently concluded that climate change has led to the dislocation of people ‘by provoking conflicts over increasingly scarce resources, such as water’ and, due to its impact on the environment, was a trigger of extreme poverty and conflict. The spectre of large numbers of ‘environmental refugees’ looms large in several parts of the world, adding significantly to the possibility of further instability and conflict. Long before COP15, Australia and New Zealand had already been involved in high-level discussions and negotiations in this regard with the Government of Tuvalu, which had, in 2001, warned the world that prompt and effective action to address the effects of climate change ‘may be the only means to safeguard the survival of an entire living society’. Similar view have been strongly and repeatedly expressed by countries like the Maldives and number of other small island developing States.

In all of these senses, environmental degradation arising from climate change can be both a cause and a consequence of misery, death and destruction, armed conflict and regional and international instability. Its devastating effects on many millions of people is, by and large, accepted, despite the efforts of the so-called ‘climate change sceptics’. It was therefore widely regarded as of crucial importance by both the scientific community, as well as broader elements of civil society, that COP15 would see very positive outcomes for the environment and, ultimately, for humanity.

It was necessary to incorporate all of these considerations into the forefront of the negotiations to shape the ‘post-Kyoto’ world. Indeed, many considered that the consequences of not acting in a comprehensive and appropriate way in Copenhagen would have been too dire to contemplate.

COP15 – What we could have got - the (Anticipated) Possible Outcomes

Prior to the Conference, it was widely thought that there were, realistically, only a discreet number of possible outcomes to the discussions in Copenhagen. Naturally, the final legal form of what was agreed (if anything) would have a profound impact on future action relating to climate change and its effects. Moreover, COP15 itself was to be the largest, most complex and (arguably) most significant international negotiation ever conducted, and its ‘success’ or otherwise would, to many, ultimately reflect also on the viability of utilising a ‘whole world’ approach – through the United Nations process - to address issues of global concern.

Prior to the Conference, various possibilities for an outcome to COP15 were canvassed by commentators. These would not necessarily be mutually exclusive, and included the following:

No outcome at all

Despite the optimism of some, there was always the possibility that those attending COP15 would failure to reach a consensus (or other) agreement, or even to take a formal Decision regarding a set of principles or proposed actions. In this event, and perhaps as a ‘face-saving’ exercise, the States at COP15 might have agreed to continue the Copenhagen discussions in mid-2010 (a meeting that would then have been referred to as COP15 bis), a political technique that been utilised on previous occasions when the main COP Meeting failed to deliver.

A Decision (or set of Decisions)

The COP could agree by consensus in plenary session at the conclusion of the Conference to make various Decisions relating to (future) action and proposals. These would not necessarily relate to any particular document, but would rather reflect its resolve to proceed in a particular way. This would be the weakest of any agreed outcome, although it would at least reflect an approach going forward that the Conference as a whole had accepted. In addition, such Decisions could supplement other possible outcomes from the Conference.

A Political ‘Agreement to Agree’

An approach favoured prior to COP15 by the United States, this would involve a non-legally binding document pursuant to which each State could decide its own emissions reductions goals and be free to implement such targets solely by way of its respective national laws. Of course, even though this approach might ultimately involve the establishment of quantified emissions reduction targets, without a compliance mechanism at the international level, these would not be readily enforceable and, in any event, there would not necessarily be a uniformity of approach (or involvement) by the industrialised countries in the process of setting national targets.

Having said this, it should not be forgotten that, to a large degree, the binding quantified targets for the first commitment period (2008-2012) under the Kyoto Protocol have themselves not been complied with. Indeed, it is now widely regarded by scientists that, even if the greenhouse gas emission reductions currently specified under the Kyoto Protocol were achieved, this would not be sufficient to solve the problems associated with global warming.

A New Legally Binding Agreement to replace the Kyoto Protocol

Given the shortcomings of the Kyoto Protocol, it was possible that the States at COP15 would ‘work to a clean slate’. Whilst no doubt referring to, and perhaps relying upon many of the principles enunciated in the Kyoto Protocol, this approach would involve the finalization of a comprehensive new agreement – the ‘Copenhagen Protocol’ (to the UNFCCC) - to replace the Kyoto Protocol. The Copenhagen Protocol would include not only many of the issues canvassed in the Kyoto Protocol, but also additional measures relating to, for example, adaptation to the effects of climate change and (binding) action / targets for developing countries, in addition to the industrialised countries. These targets might still reflect the environmental principle of ‘common but differentiated responsibility’ – imposing the largest commitments on those States with the capability to implement them – but the Copenhagen protocol would differ from the Kyoto Protocol in that it would also bind non-industrialised States to take action and comply with quantified emissions reduction targets.

An ‘New Improved’ Kyoto Protocol and a New Protocol

Another approach would be to retain the Kyoto Protocol, but to provide additional measures within that existing framework, including quantified emissions reductions targets for industrialised States for the second commitment period, as well as broader enforcement mechanisms and concrete action directed towards issues of adaptation to, and the mitigation of the effects of climate change. In addition, a second protocol (the Copenhagen Protocol) would be concluded in relation to the obligations of non-industrialised countries. These may not necessarily involve the specification of quantified emissions reductions targets, although the obligations that it established would be more rigorous than those set out in the (existing) Kyoto Protocol.

COP15 – What we actually got - The ‘Copenhagen Accord’

After two often fractious and divisive weeks of discussion, negotiation, position taking, grand-standing and walk-outs, finally culminating in a high-level session attended by 115 Heads of State, the final result of COP15 was, ironically, none of the above. Instead, it was a ‘hybrid’ document, largely driven by a small number of high-polluting States. Rumours had been circulating towards the end of COP15 that an informal grouping – led by the United States and the so-called BASIC States (Brazil, India, South Africa and China) – had prepared a document that they proposed be adopted by consensus by the Conference as a COP Decision.

As a part of this grouping, China clearly demonstrated the very significant geopolitical power that it now wields, flexing its muscles quite stridently during discussions with many countries, including the United States itself. It is therefore somewhat disconcerting that, barely one month after COP15 ended, the Chinese Government has admitted to an ‘open attitude’ towards the climate change debate The significant sphere of influence now held by China will no doubt be a portent of things to come, both in the climate change debate as well as in other areas.

The negotiation of this agreement among a small number of States was not formally advised to most of the COP15 Parties and, indeed, many delegations only first learnt about the existence of this document on the internet or through the media. Eventually, the three page, 12 paragraph, Copenhagen Accord (attached as an appendix to this paper) was presented to plenary. It is not entirely apparent exactly what the legal nature of this document is, given that it does not fall within the range of outcomes that had been canvassed prior to COP15. By way of contrast, the draft ‘Agreement’ that the COP15 had, up until that time, been negotiating ran to several hundred pages.

When the Copenhagen Accord was presented to the Conference for adoption in the final few hours of COP15, it was categorically rejected by a (admittedly small) number of States, which included Bolivia, Cuba, Nicaragua, Tuvalu, Venezuela and Sudan, which referred to it as a ‘suicide note for Africa’. Had a formal Decision been made to adopt it, the operational aspects of the Copenhagen Accord could have been implemented through the UNFCCC institutional structures. However, due to the opposition of these countries, the requisite consensus for a Decision was not possible and, instead, the plenary could only resolve to ‘take note’ of the document.

Yet the Copenhagen Accord does not itself establish any ‘free-standing’ operational mechanisms that would allow it to be implemented independently from the UNFCCC regime. The wording of the Copenhagen Accord had been carefully drafted on the assumption that it would be adopted by the COP15, and by the time it became evident that this would not be the case, it was too late to amend its terms (President Obama, for example, was already on his way back to the United States, having spent a total of 13 hours in Copenhagen).

As a consequence, the Copenhagen Accord has been described by one commentator as ‘neither fish nor fowl’, meaning that, from a strictly legal as well as practical viewpoint, it does not fall within any of the structures that would allow it to be implemented, despite the fact that the drafters have expressly declared it to be ‘operational immediately’.

Even putting this (rather fundamental) preliminary issue to one side, it is evident that there are many weaknesses and uncertainties to be found in the actual terms of the Copenhagen Accord. Whilst it is beyond the scope of this brief commentary to provide a detailed analysis of its provisions, serious questions arise as to the process leading to the finalization of the document. Many States criticized the lack of transparency leading to the presentation of the Copenhagen Accord to the community of nations. There are fears that this may set a precedent for future discussions on issues of global concern; indeed, some have gone so far as to assert that the COP15 experience signals the death of the United Nations process of broad multilateral discussion and consensus building.

Whilst, of course, there are flaws with that traditional approach, to diminish the role of the United Nations on such matters of global concern, and instead to abrogate those responsibilities to a handful of States would, I believe, represent a dangerous precedent that might be difficult to control. Moreover, this approach would compromise other emerging developments in international law and relations, such as the ‘Responsibility to Protect’ (R2P) concept, where broad and consistent action by the international community as a whole and directed towards particular threats to populations may be necessary.

Significantly, the Copenhagen Accord does not commit industrialised countries to any legally binding emissions reduction targets. In this regard, it is considerably weaker than the Kyoto Protocol; yet it leaves unresolved the crucial issue of the future of the Kyoto Protocol itself, which is, for the moment at least still the only legally binding global agreement that specifies such targets. Nor does the Copenhagen Accord specify any longer term global emissions reduction goals, although it does make reference to holding the increase in global temperature to ‘below 2 degrees Celsius’.

Rather the Copenhagen Accord advocates what has been referred to as a ‘bottom-up’ approach – where industrialised States (and developing countries if they so wish) submit by 31 January 2010 (a deadline that was subsequently abandoned by the United Nations) their proposed pledges simply for information purposes, and not directly calculated according to any particular objective or scientific criteria. This falls far short of the coordinated, cooperative and specifically focussed emissions reduction regime that the scientists, civil society and those States most vulnerable to the impacts of climate change had been calling for.

There are other weaknesses in the document relating to mitigation actions by developing countries and the establishment of more rigorous mechanisms for what is known as measurement, reporting and verification (MRV). On the more positive side, the Copenhagen Accord does provide for the mobilization of up to US$30 billion for adaptation and mitigation purposes for the period 2010-2012, with a ‘goal’ of US$100 billion per year by 2020 ‘to address the needs of developing countries’. Whilst these commitments must be viewed in the context of the non-binding nature of the Copenhagen Accord – and history is filled with examples of unfulfilled developed country pledges of funding for developing countries – this aspect of the document does represent an important basis for future discussion and possibly a legally binding agreement.

Where to from here?

There is no doubt that COP15 was a very important event. It was probably the largest international gathering ever to take place, and credit must go to the Danish authorities who, under very trying circumstances, did an admirable job in most aspects. Clearly there were always going to be significant logistical problems arising from the accreditation by the United Nations of approximately 40,000 people for a conference centre that had an absolute capacity of 15,000 (and a more comfortable capacity of about 6,000). However, the Conference thrust the issue of climate change, and its impacts, into the forefront of discussion in all parts of the globe. All countries stand liable to be affected by these adverse consequences and all thus have a responsibility to take positive action, within the limitations of their capacity, to mitigate to the greatest extent feasible, the emission of greenhouse gases.

In this regard, it is disheartening that the Rudd Government, returning from Copenhagen rather bruised and battered, has pledged that Australia will do ‘no more and no less’ than other countries. This approach simply does not take account of the fact that Australia is, on a per capita basis, one of the highest (if not the highest) carbon polluters in the world.

The historical significance of the Copenhagen Conference may not become clear for some time. Some have rather cynically re-labelled it as ‘FLOP15’. Obviously, there is an enormous amount of work to be done before the world’s population can be satisfied that all reasonable and appropriate steps are being taken to address what the Copenhagen Accord itself refers to as ‘one of the greatest challenges of our time’. There are aspects of the document that represent very important foundations upon which to build upon. But, more than ever, the uncertainties of the process in Copenhagen and the unsatisfactory nature of the final result, have demonstrated the need to finalise a strong legally binding agreement as soon as possible, and certainly no later than by the conclusion of COP16 in Cancun, Mexico in December of this year.

In the meantime, debate will continue as to the best way forward. The unfortunate errors in a major IPCC Report and other incidents (most notably the email incidents at University of East Anglia Climatic Research Unit) have given added fuel to those who describe themselves as ‘climate disbelievers’. No doubt also the cold and snowy conditions at Copenhagen during COP15, and the very severe wintry conditions currently affecting both North America and Europe, add to the cynicism of those who want to believe that the Earth’s temperature is not increasing (indeed, as I finish writing this commentary on the first day of the European Spring, I can look out of my window here in Copenhagen and still see snow showers).

However, as Al Gore wrote in a recent Opinion Piece in the New York Times, such phenomenon can be explained by scientists as a natural consequence of warmer global temperatures that increase the rate of evaporation from the oceans and thus put far more moisture into the atmosphere. As he put it: ‘just as it’s important not to miss the forest for the trees, neither should we miss the climate for the snowstorm’.

This is an important sentiment that the world needs to reflect upon.