"Taking Note" of the Copenhagen Accord: What It Means

Source: flickr / UN Climate Talks

Here is a Q&A on some of the most important legal questions surrounding the Copenhagen Accord.

As the dust settles after a decidedly unconventional climate convention, delegates and experts are turning their attention to the outcome, and what it means for the future of international climate change efforts. Previous COPs typically end with a series of “decisions” that are accepted by unanimous consensus of the delegates (majority vote does not apply to the climate convention), which sets a high hurdle for what can be accomplished.

But this time, history didn’t play out in exactly the same way. Here are some early thoughts on what actually happened at COP-15 in Copenhagen, and what it means from a legal perspective:

Is the Copenhagen Accord a binding document?

Not in a legal sense. In fact, the words “legally binding” were conspicuously removed from earlier drafts of the Accord by delegations that aren’t yet ready to enter into a legally binding instrument. But the Accord is “politically binding” on those countries that choose to sign up to it. A number of delegations publically expressed their approval of it during the final Conference of Parties (COP) plenary session. And the Convention Secretariat is setting up a process for governments to associate themselves with the Accord, and the names of their countries will be formally listed alongside the text.

But “politically binding” is not the same as “legally binding.” Politically binding—if anything—means that political consequences will flow from its breach—diplomatic responses, efforts at public shaming, withholding of discretionary funding, etc. In this sense, the Accord can be considered a strong, high level commitment by the countries that have adhered to it, and many groups are choosing to interpret it in this sense.

But didn’t the COP “adopt” the Copenhagen Accord at COP-15?

No. The COP “took note” of the Copenhagen Accord. Decisions by the COP require a consensus (if any Party present formally objects to a decision, it can block its adoption). That level of consensus was not possible in this case, and the COP rules don’t enable voting. While the 25 or so countries that were asked by the COP President to participate in a high level meeting of the “friends of the President” eventually accepted the Accord, at least four Parties spoke out against it (Tuvalu, Sudan, Bolivia, and Venezuela). In any event, COP decisions—even those agreed to by all parties—cannot by themselves legally bind Parties.

What does it mean for the UNFCCC to “take note” of the Copenhagen Accord?

“Taking note” of the Accord is a way for UNFCCC parties to formally acknowledge its existence. To quote UNFCCC Executive Secretary Yvo de Boer, it “is a way of recognizing that something is there, but not going so far as to associate yourself with it.”

However, the decision to “take note” of the Copenhagen Accord does not change the nature of the Agreement; it does not, for example, give it the significance of a COP decision. However, it may give it greater significance than documents that parties submit during COP proceedings, such as those categorized as “miscellaneous” or “informational” (MISC or INF) documents.

During the Plenary, a number of governments in support of the Accord called upon the COP, under Art 7.2(c) of the Convention to:

Facilitate, at the request of two or more Parties, the coordination of measures adopted by them to address climate change and its effects, taking into account the differing circumstances, responsibilities and capabilities of the Parties and their respective commitments under the Convention.

This should give the COP a mandate to follow up on the implementation of the Accord.

I thought I heard officials say the Copenhagen Accord be made “immediately operational.” How is that possible?

The Accord describes itself as “immediately operational.” Participating countries can, however, only immediately operationalize those parts of the Accord that do not require a COP decision.

For example, the Accord provides that governments will submit more specific country-level commitments and actions in the Appendix 1 and Appendix 2 sections of the Accord. Appendix 1 is intended for “economy-wide emissions targets” for 2020 for Annex-I countries; Appendix 2 for “mitigation actions” by non-Annex I countries. These commitments, which must be submitted by January 31st, 2010, will constitute more specific and significant commitments on the part of the submitting countries. These commitments can become operational immediately.

However, the Accord also “decides” to establish a new “Copenhagen Green Climate Fund” to manage the billions of dollars pledged in Copenhagen. It provides that the Fund will be part of the Convention’s Financial Mechanism. This isn’t possible without a COP decision. Unless the all Parties can agree, at the next COP or later, money raised under the Accord will have to be managed outside the Convention.

A plausible argument could be made that since the Accord was adopted as a package, even those aspects of the Accord that would otherwise be immediately operational (such as the 31 Jan 10 deadline) won’t take effect until the other aspects, such as the establishment of the fund, also take effect.