I think amidst all of the (legitimate) gloom about the results at Copenhagen, we should emphasize a couple of things:
1. It was known well before the meeting that we were likely to only get a political declaration from Copenhagen; in many ways, I think the media hyped the final stages of the meeting as some kind of unraveling of consensus, when most folks expected no more than a broad-brushed agreement that wasn't legally binding; 2. I know this may sound like heresy from someone from the international law side of the equation, but I think the emphasis on securing a legally binding decision from the Parties to the UNFCCC or KP is a bit of a chimera. What does it mean for an agreement to be "legally binding" when one looks at both the architecture of the UNFCCC and the Kyoto Protocol (and any likely successor agreement, either as an amendment to the KP or a standalone treaty)? Kyoto is a legally binding agreement, and many of the Annex I Parties will fail, in some cases abjectly, to meet their emissions reductions obligations under the treaty. What is the penalty for this? Well, there's an enforcement mechanism, but subject to acceptance through the amendment process, and even then, any individual party can opt out. At the end of the day, it's diplomacy and self-interest, broadly defined, that will probably ultimately determine the success of any agreement that the Parties arrive at in Mexico City and beyond. I think the presence of the regimes helps to develop and strengthen norms, but the reality is that no one is going to be hauled in front of the ICJ or any other body for failing to meet their "legally binding" obligations under the climate agreements (in fact, if you look at the UNFCCC, your only recourse is to conciliation unless the other party to any given dispute expressly consents to a legally binding dispute resolution mechanism); 3. Let me get even more realist here. While it would be nice to have the likes of Vanuatu and Venezuela on board with this document, in the long term, the planet will be saved, or doomed, by the top ten major GHG emitters, especially the U.S. and China, responsible for about 50% of the world's emissions (with China not slated to have emissions 60% higher than the U.S. by 2020). 4. Let's also not forget the positive outgrowths of Copenhagen: a. The call for Bali for developing countries to engage in "nationally appropriate mitigation actions" has been translated into a pledge to do so by the major emitting developing countries, and there will be some kind of national and international protocols developed for verification; b. A commitment by developed countries to mobilize more than $30 billion for funding mitigation programs for developing countries in three years, and a serious effort to mobilize $100 billion by 2020. One needs to be extremely skeptical about this pledge, given the fact that a similar commitment after Marrakesh for a mere $400 million never transpired, but a number of countries, including Japan and Germany, have in recent months put some real money on the table, and so we may be turning the corner on this issue. I don't foresee reaching the point where mitigation or adaptation funding is recognized on the grounds of liability under the polluter pays principle, as developing countries would wish, so developing countries will still have to rely on the kindness of strangers, but the train at least appears on the track at this point; c. The establishment of a High Level panel to explore potential sources of revenue for the Copenhagen Green Climate Fund, which could provide serious funding for both mitigation and adaptation programs. d. A broad framework has been formulated for Reductions from Emissions from Deforestation and Degradation, a source of emissions greater than all transportation sources combined. If a REDD agreement can be reached at Mexico City, it might both eventually lead to substantial reductions in emission, as well as help to institutionalize cooperation between developed and developing countries, the latter of which will account for the lion's share of emission by the middle of this century. So, while I would have hoped for infinitely more from Copenhagen, it's important to remember that we may have kicked the can forward a bit! wil Dr. Wil Burns, Editor in Chief Journal of International Wildlife Law & Policy 1702 Arlington Blvd. El Cerrito, CA 94530 USA Ph: 650.281.9126 Fax: 510.779.5361 <mailto:[email protected]> [email protected] <http://www.jiwlp.com/> http://www.jiwlp.com SSRN site (selected publications): <http://ssrn.com/author=240348> http://ssrn.com/author=240348 Skype ID: Wil.Burns From: [email protected] [mailto:[email protected]] On Behalf Of Radoslav Dimitrov Sent: Sunday, December 20, 2009 7:10 AM To: Global Environmental Politics Education ListServe Subject: Copenhagen result The political declaration by heads of states names the Copenhagen Accord was not formally adopted. To the horror of most delegations, seven countries opposed the Accord: Tuvalu, Nicaragua, Bolivia, Cuba, Venezuela, Pakistan and Saudi Arabia. They stressed there is no consensus and the Accord cannot be officially adopted. The meeting was suspended and after several hours of frantic efforts, a compromise was reached. A COP decision was made to not adopt but "Take note of the Copenhagen Accord of 18 December 2009," attach the Accord in an Appendix and list the countries who support the accord. The mandate for negotiations was extended but the reference to "legally binding" outcome of 2010 negotiations was taken out. AOSIS, Japan, Russia, the EU, and Norway supported "legally binding." India, China, Brazil, Saudi and the US opposed. However, the US was soft and merely said it is better not to prejudge legal nature of outcome. Similar exchange on KP AWG mandate. South Africa wanted to ensure AWG KP leads to Kyoto 2 and proposed "adoption of KP amendment at COP16." Japan and Russia opposed. End result: the mandate of the two AWGs is extended for one year but no mention of what negotiations are supposed to lead to (what kind of agreement the end product is supposed to be). There will be two 2010 sessions: Bonn in May/June, and COP16 in Mexico November/December. Merry Chritmas to all! Radoslav S. Dimitrov, Ph.D. Associate Professor Department of Political Science University of Western Ontario Social Science Centre London, Ontario Canada N6A 5C2 Tel. +1(519) 661-2111 ext. 85023 Fax +1(519) 661-3904 Email: [email protected]
