22 Dec 2009

The Copenhagen Accord: What actually happened - and how?

by Graeme Dennis, Brendan Bateman

The Copenhagen Accord will be the context within which the Government's emissions trading scheme, the Carbon Pollution Reduction Scheme, will be reintroduced to Parliament in February 2010.

What do you do when you have a two-track negotiation framework that stalls? You open up a third track.

That is effectively what happened last week in Copenhagen at the 15th Conference of Parties (COP) under the United Nations Framework Convention on Climate Change.

One track of negotiations was seeking to reach a binding extension to the Kyoto Protocol, under which developed nations would make further binding commitments to limit greenhouse emissions during a second commitment period.

However, the United States has not ratified the Kyoto Protocol, and indicated that it did not intend to do so. Further, the Bali Action Plan agreed at COP13 proposed that developing countries should take nationally appropriate mitigation actions (NAMAs). Therefore, a second track of negotiations was pursuing an alternative long-term co-operation agreement between developed and developing countries to limit emissions and the consequences of climate change, under the broader framework of the Climate Change Convention.

Copenhagen - a failure before it started?

Even before the conference commenced, it was clear that neither track was going to result in an agreed position, which is why the Danish Prime Minister, the host of the conference, started work on a draft "political" agreement involving "friends of the chair" such as Prime Minister Rudd, even before the conference started. During the conference, while negotiations continued on the formal two-track process (with very little progress), informal discussions between delegations from 26 countries took place to try to hammer out the political deal.

The position of the major developing countries forming the "BASIC" group of Brazil, Afrique du Sud (South Africa), India and China, from whom developed nations were expecting significant emission mitigation activities, was diverging from other developing countries that were more exposed to climate change and less likely to be contributors to future global emissions. The BASIC group members were key to concluding any political agreement but intransigence on their part, particularly China and India, frustrated progress.

On the last day, with the two formal tracks of negotiations reaching the predicted inconclusive result, and the negotiations of the political agreement in danger of collapse, the leaders of the United States and the BASIC countries met to develop the "Copenhagen Accord", a non-binding political statement of agreed intent that was ultimately placed before the formal meetings of the conference for consideration. In the process, major developed countries including Australia, Japan and the members of the EU, and the vast majority of developing countries, were excluded from the final negotiations. This led to the well-publicised acrimonious scenes on the conference floor where there was no consensus to adopt the Accord as a decision of the COP. Ultimately a compromise was reached whereby the COP simply "noted" the existence of the Copenhagen Accord.

Copenhagen Accord - the details

The Copenhagen Accord comprises just 12 paragraphs, and is a statement of intent to pursue further negotiations towards a binding agreement. The key elements of the Copenhagen Accord are:

  • a recognition that action should be taken so as to limit global warming to 2 degrees above pre-industrial levels (which the Intergovernmental Panel on Climate Change presently believes would require a stabilisation of CO2 concentrations in the atmosphere at no higher than 450ppm);
  • an objective to co-operate so that global emissions peak as soon as possible and then commence reducing;
  • a requirement for developed countries to nominate (by 31 January 2010) their economy-wide emissions targets for 2020;
  • a requirement for other countries to nominate (also by 31 January 2010) their own "nationally appropriate mitigation actions" by which they will co-operate in the global goal;
  • developed countries to jointly contribute US$30 billion of "fast-start" financing for lesser developed countries;
  • an objective to increase this funding so that the "Copenhagen Green Climate Fund" would have US$100 billion per annum by 2020;
  • a recognition that developing countries' action would include measures to reduce emissions by avoided deforestation and forest degradation and forest management (REDD-plus);
  • the use of measurable, reportable and verifiable mechanisms for determining compliance by countries, although at China's insistence the text also requires that this be without detriment to the individual sovereignty of countries;
  • a review of the arrangements in 2015.

The Copenhagen Accord, being the result of a third track outside the formal meeting and negotiation procedures under the Climate Change Convention, is neither legally binding nor does it apply to all parties to the Convention - it is left to individual countries to determine and announce whether they support the Copenhagen Accord. However, by the close of the conference, 26 countries representing approximately 80 percent of global emissions had publicly associated themselves with the Accord, and it represents the first time that the major emitters, the US and China, have signed on to an agreement to abate emissions, albeit non-binding.

Is Kyoto dead?

In one sense, the Copenhagen Accord represents the single agreement that developed countries had hoped for, incorporating commitments (of a kind) by both developed (including most importantly, the US) and major developing economies. It is not nearly as comprehensive as some developed countries such as Australia and members of the EU had hoped for, but it provides a start to such an agreement. In the process, however, the future of the two-track negotiations as well as of the Kyoto Protocol itself must be in some doubt. The success of the Accord will also depend on constructively engaging with and obtaining support from those countries who were disenfranchised through the subversion of the convention processes.

Where to from here?

The next step is to see the level of commitments offered by countries towards the Copenhagen Accord requirements for emission reduction targets and NAMAs. It is expected that most countries, Australia included, will be reluctant to put significant targets on the table unless they are confident that others are likely to do so also. Given the difficulty of obtaining binding commitments to date under the other negotiation tracks, it is difficult to envisage that this track will produce any commitment greater than what has already been publicly announced.

The United States, for instance, has to date insisted that its 2020 emission reduction commitment will not be greater than the equivalent of a 3% reduction from 1990 levels. Australia has suggested that its 2020 target will be between 5% and 25% reduction from 2000 levels, depending upon other countries' commitments. Australia's Environment Minister, Senator Penny Wong, has said that over the next month Australia will work through the nominated targets and actions with other nations who are members of the Copenhagen Accord, in order for Australia to set its mid-term targets.

The Copenhagen Accord will be the context within which the Government's emissions trading scheme, the Carbon Pollution Reduction Scheme, will be reintroduced to Parliament in February 2010. The strength of the targets and commitments offered by other countries under the Accord will no doubt be the basis of much of the debate on the reintroduced bill. Similarly, the Copenhagen Accord will form the backdrop for the United States' consideration of its own domestic emissions trading scheme. Successful passage of a US emissions trading scheme may assist and encourage the passage of the Australian scheme. If the commitments offered by other countries under the Accord are not significant, or if the US scheme falters, then the Australian scheme's future must be in doubt.

Brendan Bateman and Graeme Dennis attended the COP15 Conference in Copenhagen, and a copy of their presentation on the outcome of the conference and the Copenhagen Accord - Good COP Bad COP - is now available (PDF 1.5MB).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.