The Copenhagen Accord on Climate Change: A legal analysis

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1 Fordham University New York 22 February 2010 Understanding Copenhagen: U.S and E.U. Negotiation Positions and the Landscape for Future Negotiations The Copenhagen Accord on Climate Change: A legal analysis

2 Framework Background The Copenhagen Accord Some legal issues The EU s Position Next steps and conclusions

3 United Nations Convention on Climate Change (1992, in force 1994, 194 countries): Stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system Common but differentiated responsibilities and respective capacities

4 Kyoto Protocol to the UNFCCC (1997, in force 2005, USA not Party) sets legally binding targets for the reduction of GHG emissions (-5.2%) by industrialised countries (Annex I) within commitment periods E.g. EU: -8% by as compared to 1990 (base year) Introduction of three flexible mechanisms (international emission trading, CDM, JI) Parties need to implement national climate change policies and measures

5 Article 3.9 Kyoto Protocol «consideration of commitments for subsequent periods at least seven years before end first commitment period» 2005 Ad Hoc Working Group on further commitments by Annex I Parties (AWG KP): Aggregate and individual emission reduction targets other issues? (flexibility mechanisms, LULUCF, potential consequences)

6 2007: Bali Action Plan (after Convention Dialogue) Focus on: 1. Mitigation (+ shared vision/long term global goal) 2. Adaptation 3. Finance 4. Technology 5. Capacity Building Ad Hoc Working Group on Long Term Cooperative Action (AWGLCA): conclude in 2009

7 Negotiated by around 30 countries during the last 2 days, at heads of state level From all UN regional groups, LDCs and the alliance of small island states, covering more than 80 % of the global CO2 emissions

8 Covering all UN regional groups, LDCs and the alliance of small island states: Algeria Australia Bangladesh Brazil China Colombia Ethiopia Sweden European Commission Germany France Grenada India Indonesia Japan Republic of Korea Lesotho Maldives Mexico Norway Russian Federation Saudi Arabia South Africa Spain Sudan UK US

9 Recognition of 2 C objective Recogniton of need for peaking A review to be completed by 2015, with a reference to exploring pathways to remain below 1.5 Celsius global temperature increase No targets that can deliver that at present No peaking year [E.U.: before 2020] No global mid-term or long term reduction targets [E.U. -50% by 2050]

10 Mitigation: Economy-wide emission reduction targets for developed countries [E.U.: %* to 1990] o USA on board? Mitigation action by developing countries ode facto differentiation between developing countries to be enlisted by February 1, 2010? Aggregate number/ overall level of ambition? No explicit common accounting rules for developed countries, only common reporting (pledge-and-review approach).

11 Transparancy + accounting is rigorous, robust and transparent -Meaning that...? Ex ante? + Measurement, reporting, verification (MRV) for developed countries based on existing guidelines

12 Transparancy ++ MRV for developing countries: Low-emission development strategy National Communication every 2 years, including inventories, with an international follow up process Unsupported actions MRV-ed domestically but results will be included in National Communications; Supported actions MRV-ed internationally

13 Finance: ++ significant commitment by developed countries to provide new and additional financial resources + 30 bn $ fast-start for [E.U.:7.2bn ] bn $ by 2020 Variety of sources, both public and private, bilateral and multilateral, including alternative sources of finance Prioritized for vulnerable developing countries, e.g. The LDCs, small island developing states and Africa. ++ institutional mechanisms + Copenhagen Green Climate Fund + High Level Panel

14 + Register to record supported actions and the support itself, be it technology, finance and capacity building ++/- Establish a comprehensive adaptation programme including international support, but also response measures +/- Technology Mechanism to accelerate technology development and transfer (not specified) +/- Mechanism for reducing emissions from deforestation and forest degradation and other uses (REDD) (not specified);

15 - Very weak on market mechanism and nothing explicit on sectoral trading mechanisms -> linking of cap-and-trade systems? - No reference to international aviation and maritime transport -> IMO and ICAO? - No reference to F-gases -> Montreal Protocol? + No references to trade, IPR or historic responsibility

16 The Copenhagen Accord does not meet the criteria of an international agreement as defined by the Vienna Convention, CA is not (internationally) legally binding no explicit language referring to a process to deliver this : continuation of Kyoto Protocol?? COP15 did take note of the Copenhagen Accord, it didn t adopt it (consensual process, and Venezuela, Columbia, Cuba and Tuvalu blocked) - Possible solution for the way forward is Article 7(2)(c) of the Convention, which allows the COP to facilitate, at the request of two or more Parties, the coordination of measures adopted by them

17 Expression of association and submission of targets and/or actions to be seen (by 31 January 2010) Who may submit? Formalities? EU calls for other countries to associate and plegdes 20-30% target immediately operational? supplemented with COP implementing decisions

18 Copenhagen Accord is a step forward compared to stalemate in AWG LCA and AWG KP. Deserves strong support, stepping stone to a more ambitious future. Those negotiating need to be ready to fill in targets/actions before by February 1, 2010 Need to consider follow up process under the UNFCCC, AWG LCA and KP track? How to ensure the outcome becomes legally binding? Other processes that will be important: Major Economies Forum, US legislative debate EU internal: Decarbonisation vision 2050

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