Implications of the Copenhagen Accord for Global Climate Governance
| Author | David Hunter |
| Position | Assistant professor and director of the Program on International and Comparative Environmental Law at the American University Washington College of Law |
| Pages | 4-15 |
4WINTER 2010
INTRODUCTION
Rarely has as much anticipation accompanied an interna-
tional meeting than swirled around the 15th Conference
of th e Parties of the Uni ted Nations Framework Con-
vention on Climate Change (“U NFCCC”), also known as the
Copenhagen Summit in honor of the city where it was held in
December, 2009. The announcements in early Novem ber that
President Barack Obama and Premier Wen Jiabao would attend
the conference turned an important climate negotiation into an
enormous summit featuring most of the world’s leaders. Along
with these leaders, upwards of 40,000 participants from civi l
society, the private sector, and governments sought to shoehorn
their way into the conference center.
Rarely, too, has so much fanfare accompanied so little sub-
stance. Although many in the United States heralded t he out-
come as a diplomatic success t hat freed the climate issue from
the chains of an unworkable UN process, by almost any measure
the Copenhagen summit has to be viewed as a disappointment.
Rather than a detailed, binding framework for furthering global
climate cooperation, the parties left Copenhagen with a general
political statement that privileges the voluntary actions of states
and devalues the role of international law and global climate
governance.
The result was not a negotiation over targets or actions, but a
series of unilateral press releases, with each country announcing
what it is willing to do to mitigate climate change. The poten-
tial give-and-take that, in theory at least, is one of the hallmarks
of international negotiations was relevant only to the modalities
of c limate finance, adaptation, technology transfer, report ing,
and verification. Even with these issues, precious l ittle com-
promise or leadersh ip was apparent, and little was ultimately
accomplished.
There is plenty of blame to go around. Rather th an mark-
ing the Un ited State s’ triumpha nt return to international cli-
mate negotiatio ns with strong leader ship in unifying the world
around shared bold action, the Obama Administration offered
only modest targets and never moved from them throughout the
two weeks. Nor did any other major emitting country strengthen
its mitigation actions during the negotiations. Instead of partici-
pating in a discu ssion over what mitigation targets industri al-
ized countries s hould take, the Un ited States drew i ts line in
the sand arou nd the extent to which large developing countries
would allow their mitigation actions to be monitored, reviewed
or v erified (“MRV’d”). While maintaining a central focus on
this issue, the United States essentially refused to budge on most
other issues (with the arguable exception of financing, which is
discussed below).
Ultimately, the Copenhagen Accord seems as much a capit-
ulation as a compromise. The Accord reflects the United States’
preferred “pledge and review” approach; each country that asso-
ciates with the Accord is expected to m ake some commitment
to mitigate climate change. This was not a negotiating victory
except in the sense that the United States was not forced to take
on any le gally bin ding obli gations i n the absence of s imilar
developing country commitments. Although developing coun-
tries had to drop their desire for a Kyoto-like agree ment that
would hold onl y industrialized countries to binding targets, the
net result was that no one would be s ubject to binding targets.
The United States, China, and India could all claim success, but
the environment was the clear loser. India and China did agree to
more reporting requirements but virtually no international moni-
toring or verification of their commitments. Also lost was any
schedule for negotiating a binding legal agreement.
Only twelv e p aragraphs long, the Co penhagen Accord
could nonetheless mark a substantial realignment of global cli-
mate governance. To be sure, the long-term ramifications of the
Copenhagen Accord are not yet certain, but some initial, ten-
tative conclusions can be reached about the direction that the
Copenhagen A ccord seems to lead us in gl obal climate gover-
nance. After describing what exactly the Copenh agen Accord
does and does not do, this article will lay out some initial impli-
cations for international climate law and governance.
THE ROAD TO COPENHAGEN
The Cop enhagen negotiations were formally convened as
the Fifteenth Conference of the Parties (“CoP”) to the UNFCCC1
and the Fifth Session of the Meeting of the Parties to the Kyoto
Protocol.2 The UNFCCC, sig ned in 1992, sets forth the broad
framework f or international clim ate governance, incl uding the
overall objective, principles, and institutional structure for inter-
national cooperation with respect to climate change.3 The United
States, as well as almost every othe r country of the world, is
a party to the UNFCCC, which is widel y understood to set no
binding targets or timetables for reduction of gre enhouse gas
emissions. The Kyoto Protocol, negotiated in 1997, on the other
implicationS of the copenhagen accoRD foR
global climate goveRnance
by David Hunter*
* David Hunter is assistant professor and director of the Program on Interna-
tional and Comparative Environmental Law at the American University Wash-
ington Col lege of Law. He is also th e director o f AU’s Washi ngton Summer
Session on Environmental Law.
5SUSTAINABLE DEVELOPMENT LAW & POLICY
hand provides for clear targets and timetables for industrialized
countries that are parties. President Clinton signed the Protocol,
but it was subsequently repudiated by President Bush in 2001.
The Protocol ent ered into force w ithout U.S. participation in
2005.4 Under the Kyoto Protocol, the European Union and other
industrialized countries agreed to reduce their greenhouse gas
(“GHG”) emissions an average of five percent below 1990 lev-
els.5 These reductions are to be achieved during the years 2008-
2012, known as the first reporting period.6 The Protocol also
established an elaborate “cap-and-trade” system to r educe the
costs of compliance through the creation of a mar ket for GHG
emission reductions—the so-called carbon market.
the bali woRk plan
Recogni zing that the first
reporting period under the Kyoto
Protocol would end in 2012, the
global comm unity worked for
several years to set forth a nego-
tiating plan that would build on
the Kyoto Prot ocol, bring the
United Sta tes back into the UN
process for addressing climate
change, and outline the future
obliga tions, if a ny, of devel -
oping countr ies. These efforts
culmin ated in 2007 when the
parties to the Framework Con-
vention agreed to the s o-called
Bali Road Map—a roadmap to
Copenhagen.7 The Ba li Road
Map is comprised of several for-
ward-looking decisions, includ-
ing (1) a timetable with a 2 009
deadline for negotiating further
commitm ents of those part ies
that ha ve adopted a n emissions
cap under the Kyoto Pro tocol
(called “Annex I Pa rties”),8 (2)
a decision o perationalizing the
Adaptation Fund that had be en
created under the Kyoto Proto-
col and was critical for developing country participation,9 (3) a
compromise on what to include in the review of the adequacy of
the Kyoto Protocol as required under Article 9,10 and (4) the Bali
Action Plan.11 The Bali Action Plan set out an ambitious frame-
work for negotiating a post-Kyoto agreement with binding com-
mitments on all parties. The parties, including the United States
and most other major countries in the world, agreed to launch
a “com prehensive process” for achieving a “shared vision for
long-term cooperative action, including a long-term global goal
for emission reductions.”12 That process was intended to culmi-
nate in an agreement at Copenhagen.
The Bali Actio n Plan further enumerated a number of top-
ics for “consider ation” during the negotiations, including: (i )
“measurable, reportable and verifiable” commitments, including
quantified emissions limitations, by all developed countries; and
(ii) nationally appropriate mitigation actions (“NAMAs”) by
developing country Parties, “supported and enabled by technol-
ogy, fin ancing and ca pacity-building, in a measurable, report-
able and verifiable manner.”13 Thus, in the Bali Action Plan,
all developed countries (including the United States) agreed to
negotiate commitments that would include further binding caps
on emi ssions. For their part, all developing countries (inc lud-
ing China and India) agreed to negotiate NAMAs to reduce the
threat of climate change. The developing countries did not com-
mit to negotiating caps on emissions, but did commit to nego-
tiations over taking actions of some indeterminate nature. Other
provision s in the Bali Action Plan c ommitted the pa rties to
negotiate positive incentives for
reducing emissions from def or-
estation and f orest degrad ation
(“REDD”) in developing coun-
tries ,14 enhan ced ac tions for
adaptation,15 technology d evel-
opment and transfer,16 and inter-
nation al financial support for
responding to climate change.17
The Bali Action Plan com-
mitted bot h t he United States
and de veloping cou ntries to
negotiating a post-Kyoto agree-
ment with s ome form of bind-
ing—o r at lea st mea surable,
repo rtable , and veri fiable —
commitments. Under the terms
of th e Bali A ction Pla n, the
agree ment was to be negoti -
ated by the Fifteenth CoP of the
UNFCCC in December, 2009 in
Copenha gen. The Bali Action
Plan set forth the priorities f or
the Copenhagen negotiators and
all of the elements are reflected
to some extent in t he Copenha-
gen Accord.
The track from Bali to Copen-
hagen was a roller coaster ride of expectations. The inauguration
of the Obama Administration, for example, gave new hope that
an era o f U.S. exceptionalism and isolation with respect to cli-
mate change had ended, yielding to greater U.S. willingness to
accept binding international targets for GHG reductions. Indeed,
the Obama Administration placed climate change on the top of
its domestic legislat ive agenda with the hopes tha t economy-
wide emission targets passed by the U.S. Congress could form
the basis for international commitments at Copenhagen.18 Even
before his inauguration, Obama signaled t o the international
community his intention to engage in meaningful climate nego-
tiations by publicly endorsing federal cap-and-trade legislation
with targets for reducing c urrent emissions to 1990 levels by
Rather than a detailed,
binding framework
for furthering global
climate cooperation, the
parties left Copenhagen
with a general political
statement that privileges
the voluntary actions
of states and devalues
the role of international
law and global climate
governance.
6WINTER 2010
2020, and eighty percent reductions from 1990 levels by 2050.19
In the end, the Obama Administrat ion’s international position
would remain tethered—some would say held hostage—to the
prospects of climate legislation in the U.S. Congress.
As the prospects were turning positive in the United States,
other countries began to announce their positions with respect to
the Copenhagen negotiations. Europe agreed to reduce emissions
by 30% from 1990 levels if there was an agreement reached by
all major countries, but would otherwise reduce emissions only
20%. At the December 2008 negotiations in Poznan, develop-
ing countries, too, proposed a wide range of commitments tha t
were generally seen as signaling their willingness to take serious
mitigation steps. Among these 2008 proposals: China promised
to reduce its energy intensity by twenty perc ent by 2020; Bra -
zil committed to cut its deforestation rate by seventy percent by
2017 (resulting in a thirty to fo rty-five percent reduction in the
country’s GHG emissions); Mexico pledged to cut its emissions
by fifty percent by 2050; South Africa committed to capping its
GHG emissions by 2025 and working toward a decline thereaf-
ter; and Kazakhstan announced a decision to join Annex I of the
Kyoto Protocol and reduce emissions to 1992 levels by 2012.20
These developing country pledges were premised on access
to exp anded financing and technology from the industrialized
countries.
More problematic was the form of any international agree-
ment. Most o bservers ini tially assu med that the Copenhagen
negotiations would resul t in an amended or revised Kyoto Pro-
tocol. The United S tates is not a party to the Kyoto Prot ocol,
however, and consistently opposed any suggestion that it would
agree to anything that even looked like the Protocol. Many cli-
mate advocates nonetheless hoped for a new binding “Copenha-
gen Protocol” that imported most, but not all, parts of the Kyoto
Protocol, giving the United States some political cov er while
maintaining the basic components of the Kyoto carbon market.
This offered a relatively clean solutio n, but it would become
clear in Copenhagen that the Obama Administration, emphasiz-
ing a lack of support in the U.S. Senate, would not seriously con-
sider such an option. Moreover, such an approach left open the
question of how to incorporate “measurable, reportable and veri-
fiable” commitments from developing countries, which resisted
making such commitments in a legally binding instrument.
The leading alternative option to a binding Protocol was to
implement the Copenhagen agreements through a series of deci-
sions by the Conference of the Parties (“CoP”) to the UNFCCC.
This would not require ratification by any of th e parties, but
the leg al status of CoP decisions was open to question. Such
decisions do not fit into the traditional sources of international
law an d they may not be viewed as binding in many national
jurisdictions. A U.S. appeals court, for example, has found that
CoP de cisions made under the Montreal Protocol are not part
of domestic law and do not have to be implemented by the U.S.
Environmental Protection Agency.21
One var iation was Aus tralia’s ple dge-and-rev iew pro-
posal. Patterned loosely after t he way tariff schedules are cre-
ated under the World Trade Organization, each c ountry would
be aske d to make some kind of commitment based on factors
such as their economic status and their historical contribution to
climate change. In this way, industrialized countries would be
expected to accept mandatory emission s caps, whi le develop-
ing countries might choose from a wide range of policy options,
including energy intensity targets, sectoral targets, or promises
to create certain policies.22 Unclear in these proposals was how
or whether the pledges would be mutually binding and how the
transfer of Northern financial and technological support wou ld
be aligned with the diversity of Southern commitments. Devel-
oping countries were unlikely to make an y signifi cant com -
mitments without the binding promise of N orthern financial
support, and the North was unlikely to make financial commit-
ments without knowing what the pledges would be.
The long-awaited proposal by the United States released in
early May 20 09 was deliberately ambiguous, referring vaguely
to an “implementing agreement” that would “allow for legally-
binding approaches.”23 This language ess entially left open the
form and binding nature of any Copenhagen agreement, to be
decided at a later time. With only six months left until Copen-
hagen, wide divisions still remained over the basic form of the
negotiations—and time was running short.
Presiden t Oba ma’s Administration seem ed to be work-
ing hard for an agreement, holding bilateral summits with both
China and India.24 The broad agenda f or both summits placed
climate change cooperation high on the list. Subsequently, when
President Obama announced that he would attend the Copenha-
gen Summit (followed closely by similar announcements fro m
the leaders of both China and India), many observers believed
an agreement had already been reached among these key coun-
tries. Why else would these leaders risk their political capital
in showing up at Copenhag en? World leaders typ ically show
up for photo opportunities at international summit s, not for
negotiations.
As Copenhagen approached, countries began to position
themselves more clearly for the upcoming negotiations—but
the p ublic signals remained lar gely mixed. The United States
announced they would accept targets of 17% reductions from
2005 leve ls by 2050 and 80% reduc tions by 2050.25 This
matched the reductions set forth in t he prop osed leg islation
working its way through the U.S. Senate. Europe reaffirmed its
commitments to cut 30% from 1990 levels by 2020 if a universal
agreement coul d be reached.26 Most importantly, major devel-
oping co untries, including eventually Brazil, China, and India
all agreed to at least some specific mitigation actions.
Despite these encouraging announcements, as Copenhagen
neared, no agreement among key countries had emerged over
the form and status of the agreement. In fact, hopes for a legally
binding agreement di mmed considerably when countries par-
ticipating in the November, 2009 Asia Pacific Economic Coop-
eration meeting announced that Cop enhagen should result in a
“political” deal only. As Copenhagen opened, many observers
believed that such a politica l agreement—with a firm deadline
for negotiating a future legally binding agreement—was the best
that could be hoped for.
7SUSTAINABLE DEVELOPMENT LAW & POLICY
at copenhagen
The first week of the Copenhagen negotiations proved to be
contentious with little progress made even on the basic issue of
what form the agreement(s) should take. The nation of Tuvalu
demanded discussion on a single, l egally bindin g agreement.
China and other developing c ountries adamantl y opposed the
proposal, wanting to pursue th e “two-trac k” approac h: addi-
tional binding commitments for d eveloped countries under the
Kyoto Protocol an d nonbinding actions for developin g coun-
tries pursuant to Decisio ns of the par ties or by ot her means.
The United States opposed both Tuvalu a nd China’s positions
because both would require U.S. participation in an ag reement
essentially patterned after the Kyoto Protocol. In the meantime,
a leak of a dr aft “Danish Agr eement,” intended as the negoti -
ating text for a non-bind ing, political agreemen t was met wit h
widespread acrimony, particularly from developing countries. A
new coalition of Brazil, South Africa, India, and China (quickly
dubbed the “BASIC” c ountries) called for continuation of the
Kyoto Protocol with stronger commitments and a binding U.S.
mitigation target, coupled wit h financial and technical support
for voluntary develop ing country mitigation actions. With no
clear conse nsus on even the most basic structure of the agree-
ment, negotiators appeared to be waiting for the Heads of State
to arrive in the second week.
The Heads of State arrived, but with few answe rs or solu-
tions. Aft er all of the speeches were completed, no agreement
was ev ident. It wa s clear the United States would be taking a
hard line a nd offerin g little compromise. President Obama’s
well-publ icized intervention into the meeting of the BASIC
countries would ultimately lead to the agreement on the Copen-
hagen Accord, but his haste to control the public messaging for
a d omestic audienc e by a nnouncing the agreement in a press
conference meant that the Accord w ould be met with anger
and fr ustration from many negotiators . Although some agree-
ment was arguably better than none, the Accord left many issues
unanswered.
THE COPENHAGEN ACCORD
The Copen hagen Accord is a non-binding political agree-
ment. It is not a treaty nor did the parties intend in any way to
be legally bound to the commitments in the Accord. As a politi-
cal declaration with widespr ead acceptanc e, it can rightl y be
labeled a form of soft law—but that label adds little to the dis-
cussion of the impact of the Accord. Its impact will have less to
do with whether it is legally binding (it is not), and more to do
with whether it is politically accepted as a viable framework for
organizing international climate cooperation moving forward.27
If successful, the Accord could pave the way for more universal
commitments that in the future could form the shape of a more
legally binding s et of commitments. T his section looks m ore
closely at the terms of the Copenhagen Accord.
ShaReD viSion foR long-teRm coopeRative action
As part of the Bali Action Plan, the parties, including the
United States and most other major countries in the world,
agreed to l aunch a “comprehensive process” for achieving a
“shared vision for long-term cooperative action, including a
long-term gl obal goal for emission reductions.”28 Much of the
discussion up to and during Copenhagen antici pated reaching
a global consensus regardi ng clear timetable s for when global
emissions and atmospheric concentrations of GHGs would peak.
Unfortunate ly, the Accord provides little spe cificity sur -
rounding future global t argets and failed to adva nce the dis-
cussion much beyond what had been achieved seventeen years
before in the UNFCCC. Under the UNFCCC, the objective of
international climate cooperation has been to “stabilize green-
house gas concentration in the atmosphere at a level that would
prevent dangero us anthropogenic interference with the climate
system.”29 That level has long been assum ed to req uire hold-
ing the increase in global temperature below 2 degrees Celsius.
Given recent developments in cl imate science, however, small
island states and others were pushing for a con sensus commit-
ment to limit long-term changes to less than 1.5 degrees. In the
Copenhagen Accord, the countries agreed to “enhance [th eir]
long-term coope rative action to co mbat climate change,” “rec-
ognizing the scientific view that the increase in global temper-
ature s hould be belo w 2 degrees Celsius.”30 They also agreed
that deep cuts in global emissions “are required according to sci-
ence . . . with a view to reduce global emis sions so as to hold
the increase in global t emperature below 2 degre es Celsi us,
and t ake action to meet this objective consistent wi th science
and on the basis of equity.”31 In a compromise with those who
sought a stronger goal, the c ountries called for an assessment
of the Acc ord by 2015, which would include “consideration of
strengtheni ng the long-term goal ref erencing var ious matter s
presented by the science, inclu ding in r elation to temperature
rises of 1.5 degrees Celsius.”32 In this way, the parties could be
seen as not turning their back completely on science-based calls
for stronger emission reductions.
the geneRal fRamewoRk foR mitigation
Countries that decide to join the Copenhagen Accord ar e
required to commit themselves to a climate mitigation strategy
that they identify and repor t publicly to t he international com-
munity. Countries are divided into two categories. First, Annex I
countries (i.e. industrialized countries that were listed on Annex
I of the UNFCCC) commit to implement “quantified economy-
wide emissions targets for 2020.”33 These commitments are
expected to “further s trengthen the emissions reductions initi-
ated by the Kyoto Protocol .”34 Second, non-Annex I countries
(i.e. developing count ries) w ill sub mit “mi tigation actions,”
which are not further defined except that they should be in the
context of sustainable development.35 Least developed countries
and small island developing states “may undertake actions vol-
untarily and on the basis of support.”36 In addition and critically,
developing countries agreed for the first time to provide national
reports of their greenhouse gas inventories every two years con-
sistent with Article 12.1(b) of the UNFCCC.37 Biannual report-
ing was considered a major concession by developing countries.
8WINTER 2010
Both Annex I and No n-Annex I countries tha t c hoose
to associate with the C openhagen Accord were su pposed t o
announce their commitments by January 31, 2010. Those com-
mitments are report ed to the UNFCCC secretariat and reported
on their website.38 As of March 2010, approximately 75 countries
have made commitments under the Copenhagen Accord, includ-
ing 41 Annex I and 34 non-Annex I countries. As expected, the
commitments vary considerably, ev en within each category of
countries. Many of the Annex I commitments are conditioned
on a more ambitious agreeme nt in the futu re, or in the case of
the United States , on pass age of
nation al legislati on. Develop-
ing countries also took varie d
approaches. Some, for exa mple
South Africa, identified signifi-
cant cuts from current “business
as usual” estimates of emission
trajectories (thus allowing their
emission s to incr ease but less
than ex pected). Others, such as
India and Chi na, committe d to
reducing their energy intensity
(i.e. to im proving their em is-
sions per unit o utput) but plac-
ing no overall cap on emissions.
Still others, like the Congo or
Brazil, listed numerous sector-
specifi c actions or goals they
would meet. Some repre sen-
tat ive ex amples o f cou ntry
pledges are listed below on page
9-10.
The pledge s u nder the Copenhagen Ac cord have been
met w ith mixed response. On the one hand, some value must
be attached to getting so many c ountries to commit publicly to
addressing climate change—and many of the se commitments
are specific and significant. Overall, however, the aggregation of
commitments does not appear to get the world close to the levels
necessary to limit temperature increases to the 2 degree Celsius
goal identified in the Accord. According to the World Resources
Institute:
Existing pledge s by developed co untries, when added
together, could represent a substantial effort for reduc-
ing Anne x I emissions by 2020—a 12 to 19% reduc-
tion of e missions below 1990 levels depending on the
assumptions made about the details of the pledges. But
they still fall far short of the range of emission reduc-
tions—25 to 40%—that the [Intergovernmental Panel
on Climate Change] notes would be necessary for sta-
bilizing concentrations of CO2[equivalent] at 450 [parts
per million], a level associated with a 26 to 78% risk of
overshooting a 2ºC goal.40
Of course , the Copenhagen Accord is designed at leas t to
some extent to allow fo r changing commitments to be added
over time.41 Nonetheless, current reduction commitments were
disappointing to most observers and prompted repeated protests
in Copenhagen from, among others, 350.org, which seeks com-
mitments at a level that will reduce long-term atmospheric GHG
concentrations to 350 parts per million.42
monitoRing, RepoRting anD veRification
Ever since the Bali negotiati ons finished and the world’s
attention shifted to Cope nhagen, requirements for monitoring,
reporting, and ver ification (“MRV” ) loomed among the most
controversial and difficult issues. It was clear that developin g
countries would agree to a wid e range of volu ntary commit -
ments, but they were resistant
to any int ernational oversight—
i.e. any MRV req uirements—
atta ching to thos e volu ntary
comm itment s. O n t he other
han d, d evelo ping co untri es
wanted MRV re quirements to
apply not only to industrialized
cou ntry m itigat ion c ommit-
ments, but more controversially
to their commi tments of finan-
cial and techno logy assistanc e.
Ensurin g s ome MRV require-
ments applied to the develo p-
ing country NAMAs was a high
priority for industrialized coun-
tries, particularly for any actions
that would be supported through
internati onal fin ancial or tec h-
nology assistance.
In the e nd, d evelop ing
country mitigation actions were divided int o two categories:
those receiving support from developed countries and those that
would be unsuppo rted. Unsuppor ted mitigatio n actions taken
by developing countries will be subject only to “domestic mea-
surement, reporting and verification the result of which will
be re ported through their natio nal communications every tw o
years.”43 Developing countries are also to provide “for interna-
tional consultations a nd analysis under clearly defined guide-
lines that will ensure that national sovereignty is respected.”44 If
a developing country chooses to seek international financing to
support their mitigation action, they must subject their activity
“to international measurement, reporting and verification.”45 For
developed countries, commitments both to reduce emissions and
provide financing will be measured, reported, and verified. 46 In
each of these cases, de tailed guidelines for MRV must st ill be
determined in future negoti ations under the Conference of the
Parties, a potentially difficult task.
foReStS anD ReDD-pluS
One area tha t enjoyed perhaps the gr eatest cons ensus in
Copenhagen was the f ramework f or reduci ng emissio n from
deforesta tion an d fores t degrad ation ( “REDD”). Developing
countrie s saw this as an opportunity to generate sign ificant
amounts of foreign assistance and inve stment to improve th e
The result was not a
negotiation over targets
or actions, but a series of
unilateral press releases,
with each country
announcing what it is
willing to do to mitigate
climate change.
9SUSTAINABLE DEVELOPMENT LAW & POLICY
Appendix I - Quantified Economy-wide Emissions Targets for 2020
Annex I Party Quantified Economy-wide Emissions Targets for 2020 Base Year
Australia -5% up to -15% or -25%. Australia will reduce its greenhouse gas emissions by 25% on
2000 levels by 2020 if the world agrees to an ambitious global deal capable of stabiliz-
ing levels of greenhouse gases in the atmosphere at 450 ppm CO2-eq or lower. Australia
will unconditionally reduce our emissions by 5% below 2000 levels by 2020, and by up
to 15% by 2020 if there is a global agreement which falls short of securing atmospheric
stabilization at 450 ppm CO2-eq and under which major developing economies commit
to substantially restrain emissions and advanced economies take on commitments compa-
rable to Australia’s.
2000
Canada 17%, to be aligned with the final economy-wide emissions target of the United States in
enacted legislation.
2005
EU and its 27 Member
States (Currently, not
all EU Member States
are Annex I
Parties)
20%/30%. As part of a global and comprehensive agreement for the period beyond 2012,
the EU reiterates its conditional offer to move to a 30% reduction by 2020 compared to
1990 levels, provided that other developed countries commit themselves to comparable
emission reductions and that developing countries contribute adequately according to their
responsibilities and respective capabilities.
1990
Japan 25% reduction, which is premised on the establishment of a fair and effective interna-
tional framework in which all major economies participate and on agreement by those
economies on ambitious targets.
1990
Kazakhstan 15% 1992
New Zealand 10%/20% New Zealand is prepared to take on a responsibility target for greenhouse gas
emissions reductions of between 10% and 20% below 1990 levels by 2020, if there is a
comprehensive global agreement. This means: the global agreement sets the world on
a pathway to limit temperature rise to not more than 2° C; developed countries make
comparable efforts to those of New Zealand; advanced and major emitting developing
countries take action fully commensurate with their respective capabilities; there is an
effective set of rules for land use, land-use change and forestry (LULUCF); and there is
full recourse to a broad and efficient international carbon market.
1990
Norway 30-40%. As part of a global and comprehensive agreement for the period beyond 2012
where major emitting Parties agree on emissions reductions in line with the 2° C target,
Norway will move to a level of 40% reduction for 2020.
1990
Russian Federation 15-25% 1990
United States of
America
In the range of 17%, in conformity with anticipated U.S. energy and climate legislation,
recognizing that the final target will be reported to the Secretariat in light of enacted legis-
lation. (The pathway set forth in pending legislation would entail a 30% reduction in 2025
and a 42% reduction in 2030, in line with the goal to reduce emissions 83% by 2050.)
2005
10WINTER 2010
Appendix II - Nationally Appropriate Mitigation Actions of Developing Country Parties (selected Parties)39
Non-Annex I
Party
Nationally Appropriate Mitigation Actions
Brazil • Reduction in Amazon deforestation (range of estimated reduction: 564 million tons of CO2eq in 2020);
• Reduction in “Cerrado” deforestation (range of estimated reduction: 104 million tons of CO2eq in 2020);
• Restoration of grazing land (range of estimated reduction: 83 to 104 million tons of CO2eq in 2020);
• Integrated crop-livestock system (range of estimated reduction: 18 to 22 million tons of CO2eq in 2020);
• No-till farming (range of estimated reduction: 16 to 20 million tons of CO2eq in 2020);
• Biological N2 fixation (range of estimated reduction: 16 to 20 million tons of CO2eq in 2020);
• Energy efficiency (range of estimated reduction: 12 to 15 million tons of CO2eq in 2020);
• Increase the use of biofuels (range of estimated reduction: 48 to 60 million tons of CO2eq in 2020);
• Increase in energy supply by hydroelectric power plants (range of estimated reduction: 79 to 99 million tons of
CO2eq in 2020);
• Alternative energy sources (range of estimated reduction: 26 to 33 million tons of CO2eq eq in 2020);
• Iron & steel (replace coal from deforestation with coal from planted forests) (range of estimated reduction: 8 to
10 million tons of CO2eq in 2020);
These actions are expected to lead to reductions of 36.1% to 38.9% from projected business-as-usual.
China China will endeavor to lower its carbon dioxide emissions per unit of GDP by 40-45% by 2020 compared to the
2005 level; increase the share of non-fossil fuels in primary energy consumption to around 15% by 2020; and
increase forest coverage by 40 million hectares and forest stock volume by 1.3 billion cubic meters by 2020 from
2005 levels.
Congo Listed 33 specific actions, including training and education for forest conservation.
India India will endeavor to reduce the emissions intensity of its GDP by 20-25% by 2020 in comparison to the 2005
level.
Israel Israel “will do its utmost” to reduce its CO2 emissions by 20% from a business-as-usual projection primarily by
calling for a 10% share of renewable energy generation and 20% reduction in electricity consumption.
Marshall
Islands
40% reduction of CO2 emissions below 2009 levels by 2020.
Mexico Mexico aims at reducing its GHG emissions up to 30% from projected business-as-usual emissions by 2020, pro-
vided the provision of adequate financial and technological support from developed countries as part of a global
agreement.
South Africa 34% reduction in projected business-as-usual emissions by 2020. 42% reduction in projected emissions by 2025.
Implementation depends on financial resources, the transfer of technology and capacity building support from
developed countries.
11 SUSTAINABLE DEVELOPMENT LAW & POLICY
sustainable management of their forest resources and land-use
practices. Developed countries recognized avoided deforestation
as offering relatively inexpensive mitigation that could generate
cheap offsets for meeting their international reduction commit-
ments. Ably chaired by Tony La Vina, the REDD negotiations
had progressed in Copenhagen to a relatively detailed proposal
being forwarded for approval by the parties, but the draft (like
many other draft decisions) was never formally adopted, and
was instead preempted by the Copenhagen Accord.47
The Copenhagen A ccord endorse d REDD and calle d for
“the immediate establishment of a mechanism including REDD-
plus, to enable the mobilization of financial resources from
developed countries.”48 The parties also agreed to provide addi-
tional fin ancial assistance in both the short- and lo ng-term for
establishing REDD activities. Such a mechanism will likely be
established during the Mexico negotiations planned for Novem-
ber 2010, and the existing draft text will hopefully form the basis
for those REDD negotiations.
financing anD technology
As in all environmental negotiati ons, the terms and extent
of financial support from devel oped count ries was critical.49
Secretary of State Hillary Clinton made a high-profile announce-
ment that the industrialized countries would collectively provide
$10 b illion in annual support over the near term (2010-2012)
and finan cial resources up to $100 billion per year by 202 0.50
These numbers would be enshrined in the Copenhagen Accord,
but several critic al questions surrounding finance rema in: (1)
what revenu e sources will provide the promised financial sup-
port for addressing climate change; (2) what institutions would
be used to distribute it; and (3) for what purposes can the support
be used.
First, with respect to the sources of funding, the Copenha-
gen Accord contemplates that the additional financial resources
committed to climate change “wi ll come f rom a wi de variety
of sources, public and private, bilateral and multilateral.”51 Fol-
lowing Copenhag en, many donor coun tries have clarified their
specific financia l commitments for t he period 2010-2012, with
commitments as of March 2010 nearing $25 billion towards the
$30 billion goal.52 Less clear at this point is where the resources
will come from to meet the $100 billion per year commitment by
the period 2020. To this end, the Copenhagen Accord announced
a “High Level Panel” to be established under the Conference of
the Parties to study various potential sources of revenue to meet
this goal.53 The Hi gh Level Panel was subsequently created
under the auspices of the UNFCCC and is expected to provide
its recommendations by the time of the next meeting of the Con-
ferences of the Party in November, 2010.54 The Panel may con-
sider both public and private sources of climate financing; civil
society is hoping that the Panel will consider and recommend
innovative sources, including for example: taxes on inter na-
tional financial transfers (also known as a Tobin Tax); the use of
Special Drawing Rights under the International Monetary Fund;
a tax on bunker fuels from international aviation and maritime
shipping; and shifting money that currently funds fossil f uel
subsidies towards climate mitigation. Each of these four poten-
tial revenue sources are generally of a magnitude that could con-
tribute significantly to meeting the committed target, but each of
them also face political hurdles and additional challenges.
The institu tional structure for delivering the promised cli-
mate finance is also yet to be determ ined. The United States
strongly supports using the World Bank and other existing insti-
tutions as the primary delivery vehicle for climate finance. The
United States argues that the Bank is an efficient and knowledge-
able institution in delivering multilateral assistance, but perhaps
the mo re important reason for U.S. support is that the United
States enjoys d ominant decis ion making power in the World
Bank (holding seventeen percent of the voting share). Not sur-
prisingly, developing countries oppose the Bank and seek a new
funding mec hanism with more representative decision making
structures.55
The Accord does not clear ly decide what role the Worl d
Bank or other existing institutions will play, but it did announce
that a new “Copenhagen Gree n Climate Fund” (“CGCF”) will
be es tablished as “an operating entity of the financ ial mecha-
nism of the Convention.”56 The Fund cannot be formally estab-
lished un til the next meeting of th e Conference of the Parties.
The operational and govern ance modaliti es will also n eed to
be negotiated. The expectation is t hat the governance structu re
of the CGCF will have equal representation of developed and
developing countries. At least this appears to be the implication
from the Accord’s reference to adaptation funding: “New multi-
lateral funding for adaptation will be delivered through effective
and efficient fu nd arrangemen ts, with a govern ance structur e
providing for equal representation of developed and develop -
ing countries. A significant portion of such funding should flow
through the Copenhagen Green Climate Fund.”57
In addition to the High Level Panel and the CGCF, the
Accord announced one further new institution at least indirectly
related to financial support: a Technology Mechanism “to accel-
erate technology development and transfer in support of action
on adaptation and mitigation.”58 The miss ion, operating guide-
lines, structure, and composition of the Mechanism have not yet
been clarified.
Finally, details will still have to be negotiated regarding
what ac tivities will be eligible for international climate finan-
cial support. For the most part, the Copenhagen Accord was all
inclusive: the Parties agreed to pro vide “[s]caled up, new and
additional, predict able and adequate fundin g . . . to enable and
support enhanced action on mi tigation, including substantial
finance to reduce emissions from deforestation and fore st deg-
radation (REDD-plus), adaptation, technology development and
transfer and capacity-buildi ng, for enhanced implement ation
of the Convention. ”59 The Accord also promises a “balanced
allocation between adap tation and mitigation,” wit h priorities
for adap tation funding to go to “the most vu lnerable develop-
ing countries, such as the least developed countries, small island
developing States and Africa.”60 The CGCF’s mission as spelled
out in the Accord will be to “support projects, programmes,
policies and other act ivities in dev eloping countries related to
12WINTER 2010
mitigation including REDD-plus, adaptation, capacity-building,
technology development and transfer.”61 The net result i s that
the Accord contemplates financial support for a wide range of
climate-relate d activities, but more detailed condi tions on the
use of the funds must stil l be negotiated in the next few years.
Indeed, financing is now expec ted to be a ma jor focus of the
2010 negotiations in Cancun, Mexico.
IMPLICATIONS FOR GLOBAL CLIMATE GOVERNANCE
It is un doubtedly too soon to understand fully what the
long-term implications of the Copenhagen Accord may be. The
Accord is only one step in what is a decades-long effort to fash-
ion a comprehensive and effective global approach to climate
change. Although the Accord arguably signals a major shift
away from the global cap-and-trade approach of the UNFCCC
and the Kyoto Protocol, we may find in ten years that the Accord
simply shaped a process that still led to a system fundamentally
shaped by the Protocol’s cap-and-trade system. We must, there-
fore, recognize that the implications of the Accord will depend
as much on what happens in the next few years of negotiations
as what happened at Copenhagen. This is all the more true, given
the relative general nature of the Accord, the lack of clarity in
how the Accord relates to the UNFCCC, and the lack of a clear
consensus for a way forward. Indeed, the lack of consensus on
next steps was particularly striking at Copenhagen; the Summit
ended with no clear work plan for e nsuing CoP negotiations or
for the Secretariat, resulting in an unprecedented lack of clarity
over the direction of future climate negotiations. Although some
of the uncertainty has been addressed in the months following
Copenhagen, the lon g-term direction of th e post-Copenhage n
climate regime is still unclear. With these caveats firmly in mind,
this article ventures some potential implications of the Copenha-
gen negotiations for the future of global climate governance.
the thReat to a negotiateD, Science-baSeD
appRoach
The UNFCCC and K yoto Prot ocol emb ody a clear top-
down glo bal approach to addressing clima te change, in which
(1) scientists through, for example, the Intergovernmental Panel
on Climate Change (“IPCC”) inform the negotiators of what cap
on globa l emissions is necessary to avoid the most significant
negative climate impacts; (2) the negotiators agree to a system
of targets and timetab les that will achieve the scienc e-based
cap on emissions; (3) a global market-based system will assist
in re-allocatin g the cap, throug h such mechanisms as cap-and-
trade and the offset market; and (4) compliance with targets
and timetabl es will be moni tored internationally and sanctions
for non-c ompliance may be imposed by the other parti es. The
Copenhagen Accord essentiall y has rejected such a sci ence-
driven, universally negotiated and enforced system of targets
and timetables. In its place, the Accord allows each country or
group of countries to make a separate and potentially unrelated
pledge rega rding its efforts to reduce climat e change. Nothing
in this process of pledges suggests that the GHG reductions in
aggregate will be tied to a scientifically based analysis of what is
necessary to avoid significant climate impacts. Indeed, as noted
above, even if every country fulfills its pledges under the Copen-
hagen Accord, reductions will still fall short of what is necessary
to avoid significant climate disruption. Also lost in the Copen-
hagen Accord’s “pledge-and-review” approach is that the indi-
vidual c ountry’s pledges are not openly negotiated amo ng the
parties. As a result, little p ossibility exists to inc rease commit-
ments through the give-and-take of negot iations or by publicly
isolating a c ountry that is doing too little. The net result is that
overall commitments are likely to be less than we could expect
through a negotiated process.
emphaSiZing the national level
Associated with the “pledge-and-review” appr oach of the
Accord is a shift in the emphasis of global climate policy from
the international to the national level. Rather than an internation-
ally agreed set of caps, the focus is entirely on what national
governments are willing to pledge publicly to support. The atten-
tion is thus shifted to national level decision making. This makes
explicit what many obse rvers have recog nized all along —that
what happ ens at the international climate negotiations may be
less important to addressing global climate change tha n what
happens in the cap itals of key countries. Indeed, although the
Accord provides for significantly less monitoring and oversight
than would be exp ected in a Kyoto-like system of m utually
negotiated and internationally a ccepted targets and timetables,
even complia nce with a Kyo to-like system ultimate ly depends
on domestic action for compliance.
Perhaps the Accord’s more explicit focus on the nationa l
level will provide for more resources being shifted from inter-
national negotiations to buildi ng capacity for nat ional imple-
mentation. Given that developing countries have voluntarily
self-identified their mitigation actions, we could expect greater
commitment to implementation and failure to meet these individ-
ually-tailored actions may be more embarrassing than failure to
meet internationally negotiated targets. The result could be that
both donors and recipient governments may be more inclined to
invest in implementation of the mitigation commitments. If such
a focus on the national level can be transferred into a long-term
focus on the difficult work of building national capacity, global
efforts to address climate may benefit. But long-term cap acity
building does not provide the promise of a quick headline or the
excitement of international negotiations. Funders, governments,
and civil society must resist the allure of international negoti a-
tions and shift at least some of their work to the less romantic
drudgery of long-ter m training, capacity b uilding, and move-
ment building at the national level. If nothing else, anything that
shifts re sources from talk ing to action should be welcomed in
global climate policy.
the emeRgence of a pluRaliStic appRoach to
climate goveRnance
Both the subst ance of the Accord’s pledge -and-review
approach and the process b y which it was negotiated arguably
undermine the importance of the United Nations, particularly the
UNFCCC Secretariat, in future climate governance. The Accord
was ultim ately negotiat ed outside of the form al UNFCCC
13 SUSTAINABLE DEVELOPMENT LAW & POLICY
process, beh ind closed doors, with only a handful of countries
present. For the most criti cal part of th e negotiations, only the
United States and the BASIC co untries (Brazil, South Africa,
India, and China) were in the room—and tho se five count ries
had not been authorized by any others to negotiate the Accord.62
This process was heavily criticized by many ot her coun-
tries and left the parties wondering how the Accord fit with the
UNFCCC or Kyoto Protocol. This tension mani fested itself in
the debate on the floor at Copenhagen over whether and how the
parties to the UNFCCC should recognize this document labeled
the Copenhagen Accord. Ultimately, the UNFC CC parties nei-
ther ad opted nor en dorsed the A ccord, instead simply “taking
note” of it. This meant the UNFCCC Parties as a whole recog-
nized that the d ocument existed, but gave it no formal status.
This deci sion threatened th e legitimacy and importance of the
Accord and r evealed the relativel y weak consensus that s ur-
rounded it.
The deb ate over the formal statu s of the Accord revealed
deeper tensions over the appropriat e forum for negotiat ing cli-
mate governance. The Accord was seen as a new path separate
from, and potentially dominant over, the UN FCCC process. It
also revealed the weakness of the UN process, in which under
the current rules of d ecision even a handf ul of oil-dependent
states, for example, can continue to disrupt overall progress. To
some observers the UN process is too unwieldy and too easily
held hostage by a small number of states to allow for effective
negotiations. On the other hand, the heavy-handed approach by
just a few states in negotiating and announcing the Accord also
arguably undermine s progre ss towar d reachi ng broad global
consensus for long-term cooperative action.
The pote ntial for spli tting off a new n egotiating pr o-
cess under the Accord raises the specter of a more pluralisti c
approach to climate governance, with significantly more insti-
tutions involved in cli mate polic y. The Accord itself cr eates
three new institutions—the High Level Panel on Financing, the
CGCF, and the technology mechanism—without fully clarify-
ing the ir relationship with existing institutions. More over, the
willingness to negotiate t he Accord outside of the UNFCCC
processes suggests th at in t he future the most critical cli mate
negotiations may take place in meetings of the G-20, the Major
Economies Forum (“MEF”), or in bilatera l or regional forums.
The increas e in forums is not necessaril y negative, but it does
raise additional chall enges for ensuring policy coherence and
integration. These alternative forums do not have the broad par-
ticipation of the UN process, potentially missing, for example,
the moral vo ice brought to the neg otiations b y the countries
hardest hit from climate change (the small island states and the
least develope d countries). Excluding these countries f rom the
negotiations may make the negotiations more comfortable, but
climate policy will likely suffer. The alternative forums will also
likely be less transparent and accessible to the public. An elabo-
rate system for civil society participation has developed around
the climate negotiations that has until now been largely lacking
in the G-20, MEF or similar forums.
The emergence from Copenhagen of a pluralistic approach
is also evident in specific areas of climate governance. For exam-
ple, Copenhagen appeared to do little to further the interests of
a global carbon market, and in fact the failure to make progress
on a second reporting period under Kyoto suggests that a global
carbon market is not likely in the near fu ture. This does not
mean that we have seen the end of carbon markets, however. On
the contrary, the carbon markets do not require a global cap-and-
trade system to flourish. The carbon marketers were not visibly
upset with the outcome of Copenhagen because they know that
the most important decisions for a carbon market will be made at
the national and bilateral level. For example, the carbon market’s
future depends mostly on whether the United States establishes
a national cap on emissions and a framework for integrating its
market with the European emissions trading system. In addition,
Europe a nd the United States can adopt, through their respec-
tive legislation, the necessary rules for creating an offset market
with opp ortunities for developing country participation. Thus,
for example, the United States may adopt legislation that allows
U.S. compan ies to purchase offsets from pr e-approved sectors
of specific developing countries (for example, forest credits
from Brazil ). In this w ay the carbon market is establish ed and
maintained not by a global set of standards negotiated under the
UNFCCC, but by a series of bilateral and regional agreements,
creating an interconnecting market for emissions trading and the
purchase and sale of reduction credits.
The situation is similar with respect to climate finance archi-
tecture. As noted above, the Copenhagen Accord reflected sig-
nificant new commitments in financial transfers from the North
to the South, but it left open significant questions regarding the
future inst itutional architecture for managing these funds. Cli-
mate fi nancial architecture is controver sial. Among the recur-
ring issues are: (1) the extent to which decision making will be
controlled by the donor countries; (2) what conditions, including
environmental an d social safeguards, will be placed on financ-
ing; ( 3) how the financing com mitments will be monitored to
ensure that funds earmarked for climate financing are “new and
additional;” and (4) the extent to w hich the UNFCCC will set
policy and coordinate financing.63 Complica ting th is furt her
is the multiplicit y of institutions th at already address c limate
finance. The W orld Bank itself administers the Climate Invest-
ment Funds (“CIF”), the Forest Carbon Partnership Facility, and
approximately a dozen other climate-related funds, not to men-
tion the general climate and energy-related lending it does under
its normal operat ions.64 Added to t he World Bank’s cl imate-
related activities are the Adaptation Fund, the Global Enviro n-
ment Facility, the Clean Development Mechanism, and a variety
of national and regional clim ate-related funds. For obvious
reasons, ensurin g coord ination among these i nstitutions and
between the se organizations an d the UNFCCC secretariat was
a high priority.
Unfortunately, the Copenhagen Accord, itself, did little to
enhance coordination, consolidate climate finance architecture,
or answ er any of the related questions. In fact, in announcing
the new Copenhagen Green Climate Fund, the parties added a
14WINTER 2010
new institution with little operational clarity. The expectation is
that decision making at the CGCF will be made by equal repre-
sentation of developed and developing countries—still unknown
is whether the CGCF will be independent or operate under the
World Bank, what safeguard poli cies will attach to its opera-
tions, or what will be the compo sition of the CGCF decision
making structure.
The parties to the Acco rd also established the High Leve l
Panel for climate fi nancing, but in so doing t hey appare ntly
missed an opportunity to provide for greater institutional coordi-
nation. The High Level Panel has a relatively limited mandate to
investigate new sources of rev-
enue. During the Copen hagen
negotiati ons, a consensus had
been em erging for t he need of
such a high level panel to coor-
dinate the myriad of financing
institution s and to en sure that
the goals of the UNFCCC were
bein g e fficie ntly ad vanced.
This greater coordinating role
was not (or at le ast not yet)
included in the High Level Pan-
el’s mission.
implicationS foR
inteRnational law
Much of th e debate, both
before and after Copenhagen,
center ed around whe ther the
parties would continue the pur-
suit of l egally bin ding targ ets
and tim etables. In t he end, the
choice to acc ept a non-bind-
ing option reflected a lack of
politica l cons ensus—not over
whether there should be a binding agreement, but what the
requirements should be and to whom they should apply. Indeed,
virtually every country has endorsed (and continues to endorse
after Copenhagen) the pursuit of a binding agreement , but o f
course this did not lead to any binding decision at Copenhagen.
Moreover, the parties excised (with the insistence of China and
India) any language in the Accord that would have set a sched-
ule f or negotiating a binding agreement i n the nea r future. In
short, Copenhage n can only be viewed as a majo r set-back for
anyone seeking a hard, binding agreement.
To some extent, however, the co ncerns over the relative
“hardness ” of the climate regime may be too formalistic an
inquiry. We should not lo se sight that the end goal of glo bal
climate policy is to take action to reduce the risk of significant
climate disr uption — it is not to have a binding agre ement. In
that respect, it is helpful to aba ndon the arcane discussi on of
whether the Copenhagen Accord is or is not binding (it clearly
is not), in favor of a discussion of whether the Accord nonethe-
less promotes commitments and actions t hat can be effectively
monitor ed and enforced. As Jake Werk sman of the World
Resources Institute notes, more important than the formality i s
the functionality of binding international law.65 According to
Werksman, the salient questions in the conte xt of the Accord
would be: (1) are norms being developed under the Accord spe-
cific and clear enough to monitor and determine compliance, (2)
is there a viable institutional framework available for monitoring
and determining compliance, and (3) are there sanctions avail-
able for non-compliance.
Looking fir st at the normative fra mework, the Accord
offers so me modest steps forw ard. The Accord’s “p ledge-
and-revie w” system means that
both the United States and most
developing countries for the first
time have agreed to take some
specif ic actions fo r mitigating
climate change. As can be seen
from the few examples excerpted
above, many (although not all)
of the commitments made unde r
the Accord cou ld, in theory, be
measured and verified. Thus, for
example, economy -wide r educ-
tions, improvemen ts in energy-
int ensit y, or s ector -spec ific
actio ns can all be monit ored
effectivel y, assumin g the coun-
try has establ ished appropriat e
baselines, developed methodolo-
gies for measuring results, and
committed the resources to moni-
torin g over time. Deve loping
countries also agreed for the first
time to submit national reports,
including GHG inventories, bian-
nually. This is an important com-
mitment that can easily be monitored for compliance. In general,
then, the Accord does offer some standards of behavior that are
sufficiently clear and detailed to allow for holding the signatory
responsible.
On the other hand, the institutional framework for monitor-
ing, reporting , and verifying country actions under the Accord
does have significant deficiencies. The MRV requirements were
one of the most hotly contested issues in Copenhagen and indeed
to some extent the ent ire negotiations pivo ted on the extent to
which parties could reach consensus on the international MRV
requirement s that would b e applied to their vario us commit-
ments. This is not surprising given that the MRV requirements
in many ways are critical to whether an agreement is or is not
functionally binding.
In the end, a variety of MRV requirements were suggested
by the Copenhagen Accord, but most of the details have been
left for future negotiations. Developed country mitigation com-
mitments are expected to be subject to MRV requirements sim-
ilar t o those cur rently existing under the Kyoto Protocol. The
[B]oth the process and
outcome of Copenhagen
do not offer significant
reason to hope that the
world’s leaders can put
aside short-term political
expedience to make
the long-term, shared,
equitable steps needed to
avert substantial climate
disruption.
15 SUSTAINABLE DEVELOPMENT LAW & POLICY
financial commitments of developed co untries are also to be
subject to MRV, but under guidelines yet to b e adopted. The
most controversial issue relating to MRV—the extent to which
developing country NAMAs wo uld be subject to international
oversight—r esulted in a two-tiered outcome. For develop ing
countries that take steps without international support, MRV
will be condu cted at the n ational leve l according to national
MRV requirements and included as part of the biannual national
reports submitted to the UNFCCC. Th ese actions wi ll also be
subject to “international consultation and analysis,” which was
left undefined but recognized to be considerably less than inter-
national MRV requirements would normally entail. Developing
countries that acc ept internationa l financial support t o imple-
ment their NAMAs will be subject to more robust international
MRV oversigh t requirements, accordin g to detailed guidelines
to be negotiated in the future. Overall, the MRV require ments
in Copenhagen were disappointing to those who wanted to see
progress on a s ystem with strong and comprehensive inte rna-
tional oversight. India, China and the emerging economies con-
sidered the relativ e lack of MRV requirements to be a major
victory that preserved their national sovereignty.
Even more disappoin ting f or th ose wh o wan t musc ular
internati onal over sight is the lack of a ny sanct ions for non-
compliance in the Accord . This is a difficult area generally i n
interna tional environment al l aw, with the primary sanctio n
being one of “naming and shaming” those in non-compliance.
This is the only sanction implicitly available under the Accord,
although there is no mechanism for parties to formally condemn
each other for non-compliance. By contrast, non-compliant par-
ties to the Kyoto Protocol could face more significant mitigation
commitments in f uture reportin g periods (assuming there are
subsequent reporting periods).66 The Protocol would also lend
itself readily to sanctioning non-compliance by reducing certain
regime benefits (for example, withdrawing eligibility for receiv-
ing fund ing under the regime or for participating in the of fset
markets). The Accord thus far contemplates no such sanctions.
CONCLUSION
It may be too soon to understand the ultimate impact of the
Copenhagen Summit; it is after all only one step in a long-term
process of global cooperation to address climate change. In this
regard, agreement to even the anemic Copenhagen Accord is
arguably better than if the negotiations had failed to reach any
agreement at all. Most of the world has now, or soon will have,
associated with the Accord and announc ed either an economy-
wide target (in the case of developed countries) or one or more
mitigation acti ons (in the case of developing count ries). These
commitments, along with progress relating to financing, REDD,
and technology transfer may subsequently be viewed as critical
building blocks in an effective, comprehensive climate regime.
For now, however, both the process and outcome of Copenhagen
do not offer significant reason to hope that the world’s leaders
can put aside short-term political expedience to make the long-
term, shared, equitable steps needed to avert substantial climate
disruption.
May 9, 1992, 1771 U.N.T.S. 107, available at http://unfccc.int/resource/docs/
convkp/conveng.pdf.
2 Kyoto Protocol to the United Nations Framework Convention on Climate
Change, Dec. 11, 1997, 37 I.L.M. 22 [hereinafter Kyoto Protocol], available at
http://unfccc.int/resource/docs/convkp/kpeng.pdf.
3 For more on the UNFCCC, see Daniel Bodansky, The U.N. Framework Con-
vention on Climate Change: A Commentary, 18 yale J. int’l l. 451 (1993).
4 UN’s Kyoto Treaty Against Global Warming Comes Into Force, un newS
SeRv., Feb. 16, 2005, http://www.un.org/apps/news/story.asp?NewsID=1335
9&Cr=global&Cr1=warm; Bush Firm over Kyoto Stance, cnn.com, Mar. 29,
2001, http://archives.cnn.com/2001/US/03/29/schroeder.bush/index.html.
5 Kyoto Protocol, supra note 2, art. 3, ¶ 1. See generally michael gRubb et
al., the kyoto pRotocol: a guiDe anD aSSeSSment (Royal Institute of Interna-
tional Affairs 1999) (providing a general overview of the Kyoto Protocol).
6 Kyoto Protocol, supra note 2, art. 3, ¶ 1.
7 See Rachmat Witoelar, President, U.N. Climate Change Conference, Address
to Closing Plenary at Closing of the Joint High-Level Segment: The Bali Road
Map (Dec. 15, 2007), available at http://unfccc.int/files/meetings/cop_13/appli-
cation/pdf/close_stat_cop13_president.pdf.
8 See Ad Hoc Working Group on Further Commitment for Annex I Parties
under the Kyoto Protocol, Fourth Session, Bali, Indon., Dec. 3-15, 2007, Report
of the Ad Hoc Working Group on Further Commitments for Annex I Parties
under the Kyoto Protocol, ¶ 22, U.N. Doc. FCCC/KP/AWG/2007/5 (Feb. 5,
2008).
9 Conference of the Parties Serving as the Meeting of the Parties to the Kyoto
Protocol, Bali, Indon., Dec. 3-15, 2007, Report of the Conference of the Par-
ties Serving as the Meeting of the Parties to the Kyoto Protocol on its Third
Session—Addendum, Part Two: Action Taken by the Conference of the Parties
Serving as the Meeting of the Parties to the Kyoto Protocol at its Third Session,
dec. 1/CMP.3, U.N. Doc FCCC/KP/CMP/2007/9/Add.1 (Mar. 14, 2008) [here-
inafter Adaptation Fund], available at http://unfccc.int/resource/docs/2007/
cmp3/eng/09a01.pdf.
10 See id.
11 See United Nations Framework Convention on Climate Change, Bali, Indon.,
Dec.3-15 2007, Bali Action Plan, dec. 1/CP.13, U.N. Doc. FCCC/CP/2007/6/
Add.1 (Dec. 2007) [hereinafter Bali Action Plan], available at http://unfccc.int/
resource/docs/2007/cop13/eng/06a01.pdf#page=3.
12 Id. dec. 1/CP.13.1(a).
13 Id. dec. 1/CP.13.1(b)(i)–(ii).
14 Id. dec. 1/CP.13.1(b)(iii).
15 Id. dec. 1/CP.13.1(c).
16 Id. dec. 1/CP.13.1(d).
17 Id. dec. 1/CP.13.1(e).
Endnotes: Implications of the Copenhagen Accord for Global
Climate Governance
Endnotes: Implications of the Copenhagen Accord for Global
Climate Governance continued on page 56
