The long way to the Copenhagen accord: Climate change negotiations in 2009

Review of European Community and International Environmental Law

Volumn 19, Issue 1, 2010, Pages 104-121

  Massai, Leonardo ^a  

^a TMC Asser Institute   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

CLIMATE CHANGE; CLIMATE EFFECT; KYOTO PROTOCOL; UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE;

COPENHAGEN [(CTY) HOVEDSTADEN]; DENMARK; HOVEDSTADEN;

EID: 77953877669     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2010.00668.x     Document Type: Article

References (93)

1. United Nations Framework Convention on Climate Change (New York, 26 May 1992) (UNFCCC).
2. The Bali Roadmap, closing statement of Joint High-Level Segment by the President of the COP, Rachmat Witoelar (Bali, 15 December 2007), available at ?http://unfccc.int/files/meetings/cop-13/application/pdf/close-stat-cop13- president.pdf?
3. Kyoto Protocol to the UNFCCC (Kyoto, 11 December 1997)
4. Dialogue on long-term cooperative action to address climate change by enhancing implementation of the Convention, Decision 1/CP.11 (FCCC/CP/2005/5/add.1, 30 March 2006); and see Consideration of commitments for subsequent periods for Annex I parties to the Convention under Article 3.9 of the Kyoto Protocol (KP), Decision 1/CMP.1 (FCCC/KP/CMP/2005/8/add.1, 30 March 2006).
5. Bali Action Plan, Decision 1/CP.13 (FCCC/CP/2007/6/add.1, 14 March 2008).
6. See UNFCCC, n. 1 above, Article 2, which states: The ultimate objective of this Convention and any related legal instruments that the Conference of the parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a timeframe sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner
7. See Bali Action Plan, n. 5 above, at 3.
8. The USA has not ratified the Kyoto Protocol and therefore it participates in the meetings of the COP/MOP and AWGKP with an observer status.
9. Report of the Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol on its resumed Sixth Session, held in Poznan, 110 December 2008 (FCCC/KP/AWG/ 2008/8, 4 February 2009).
10. Fulfilment of the Bali Action Plan and components of the agreed outcome (FCCC/AWGLCA/2009/4, 18 March 2009), Parts I and II. Part I contains an explanatory introduction and an overview, including suggestions for focusing the negotiations at the fifth session of the AWGLCA. Part II covers in some detail the state of consideration by the AWGLCA of parties ideas and proposals on all the elements of the Bali Action Plan, structured in a manner that reflects the current organization of work of the group.
11. Possible elements for amendments to the Kyoto Protocol, pursuant to its Article 3, para. 9: Note by the Chair (FCCC/KP/AWG/2009/3, 26 February 2009); Possible elements of a text relating to issues outlined in document FCCC/KP/AWG/2008/8, para. 49: Note by the Chair (FCCC/KP/AWG/2009/4, 10 March 2009); Elaboration on how to address, where applicable, the definitions, modalities, rules and guidelines for the treatment of land use, land-use change and forestry: Note by the Chair (FCCC/KP/AWG/2009/INF.1, 12 March 2009); and Further elaboration of possible improvements to emissions trading and the project-based mechanisms under the Kyoto Protocol: Note by the Chair (FCCC/KP/AWG/2009/INF.2, 12 March 2009).
12. Developed and developing countries are often referred to respectively as Annex I parties to the UNFCCC and non-Annex I parties. Parties inscribed in Annex I to the UNFCCC are considered industrialized countries by the UNFCCC.
13. The terms convergence and coherence were used often by Annex I parties during the negotiations, in particular by members of the Umbrella Group, such as Japan, Canada, USA and Australia. This is evidenced, for instance, in the Report of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol, Seventh Session, held in Bonn from 29 March to 8 April 2009 (FCCC/KP/AWG/2009/5, 13 May 2009), at 13.
14. Report of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol, Seventh Session, held in Bonn from 29 March to 8 April 2009 (FCCC/KP/AWG/2009/5, 13 May 2009), para. 74.
15. Negotiating text: Note by the Chair (FCCC/AWGLCA/2009/8, 19 May 2009).
16. Parties also met in informal consultations to discuss the legal form of the outcome of the AWGLCA.
17. This chapter included the following subparagraphs: 1(b)(i) on mitigation by developed countries; 1(b)(ii) on mitigation by developing countries; 1(b)(iii) on reducing deforestation and forest degradation in developing countries, plus conservation (REDD-plus); 1(b)(iv) on sectoral approaches; 1(b)(v) on market-based approaches; and 1(b)(vi) on consequences of response measures.
18. Revised negotiating text: Note by the Secretariat (FCCC/AWGLCA/2009/INF. 1, 22 June 2009).
19. A non-paper is a document that summarizes the results of a negotiation in a contact group or informal consultation among parties. This document is forwarded to the next session of negotiations and used as a basis for the compilation of the official documents by the chair.
20. Compilation of information relating to possible quantified emission limitation and reduction objectives as submitted by parties: Informal note by the Secretariat (12 June 2009)
21. Aggregate Annex I Reductions for 2020: Note compiled by AOSIS (11 June 2009).
22. These were USA, Tuvalu, Japan, Australia and Costa Rica
23. These were from the EU, Tuvalu (2), Philippines, New Zealand, Colombia, Algeria and other Group of 77 and China countries, Belarus, Australia, Japan, Bolivia on behalf of Malaysia, Paraguay and Venezuela, and Papua New Guinea.
24. See note by the Secretariat, n. 18 above
25. Reordering and consolidation of text in the revised negotiating text: Note by the Secretariat (FCCC/AWGLCA/2009/INF.2, 15 September 2009).
26. Documentation to facilitate negotiations among parties: Note by the Chair (FCCC/KP/AWG/2009/10, 1 July 2009).
27. Documentation to facilitate negotiations among parties: Note by the Chair. Revised addendum. Proposed amendments to the Kyoto Protocol pursuant to its Article 3, para. 9 (FCCC/KP/AWG/2009/10/ Add.1, 1 July 2009).
28. Documentation to facilitate negotiations among parties: Note by the Chair. Addendum. Other proposed amendments to the Kyoto Protocol (FCCC/KP/AWG/2009/10/Add.2, 1 July 2009).
29. Documentation to facilitate negotiations among parties: Note by the Chair. Addendum. Draft decisions on other issues identified in para. 49(c) of document FCCC/KP/AWG/2008/8 (FCCC/KP/AWG/2009/10/Add.3, 1 July 2009).
30. Documentation to facilitate negotiations among parties: Note by the Chair. Addendum. A compilation of proposals by parties for aggregate and individual figures for Annex I parties (FCCC/KP/AWG/2009/10/Add.4, 1 July 2009).
31. The three informal groups that were not mandated to adopt conclusions were: Annex I parties Aggregate and Individual Emission Reductions; Other Issues (flexibility mechanisms, LULUCF, greenhouse gases, sectors and source categories, common metrics and methodological and other issues); and Potential Consequences of Response Measures.
32. As mentioned above, parties decided to have an additional informal session in August 2009 in order to facilitate exchange of views among parties.
33. See note by the Secretariat, n. 18 above.
34. See note by the Secretariat, n. 25 above
35. The work of the five groups is outlined below. The six subgroups focused on adaptation, finance, technology, mitigation, capacity building and a shared vision for long-term cooperative action.
36. Forty-nine countries particularly vulnerable to climate change are defined Least Developed Countries by the UN system and they regularly work together in international negotiations.
37. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Non-paper on institutional arrangements and their functions (23 September 2009).
38. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact Group on Enhanced Action on Capacity- Building, Revised Annex VI to document FCCC/AWGLCA/2009/ INF.2, Non-paper by the co-chairs, Non-paper No. 24 (9 October 2009).
39. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact Group on Enhanced Action on the Provision of Financial Resources and Investment, Revised Annex IV to document FCCC/AWGLCA/2009/INF.2, Non-paper by the chair of the contact group, Non-paper No. 13 (5 October 2009).
40. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact Group on a Shared Vision for Long-term Cooperative Action, Revised Annex I to document FCCC/AWGLCA/2009/ INF.2, Non-paper by the facilitator, Non-paper No. 19 (8 October 2009).
41. Ad Hoc Working Group on Further Commitments for Annex 1 parties under the Kyoto Protocol (AWG-KP), Non-paper No. 28 (mitigation overarching) (9 October 2009); Non-paper No. 25 (developed countries) (9 October 2009); Non-paper No. 20 (developing countries) (8 October 2009); Non-paper No. 18 (REDD plus) (8 October 2009); Non-paper No. 17 (cooperative sectoral approaches) (8 October 2009); Non-paper No. 30 (various approaches) (9 October 2009); and Non-paper No. 32 (economic and social consequences of response measures) (9 October 2009).
42. Ad Hoc Working Group on Further Commitments for Annex 1 parties under the Kyoto Protocol (AWG-KP), documentation to facilitate negotiations among parties: Note by the Chair (FCCC/KP/AWG/2009/10/Rev.1, 28 August 2009).
43. Ad Hoc Working Group on Further Commitments for Annex 1 parties under the Kyoto Protocol (AWG-KP), documentation to facilitate negotiations among parties: Note by the Chair, Revised addendum (FCCC/KP/AWG/2009/10/Add.1/Rev.1, 28 August 2009).
44. Ad Hoc Working Group on Further Commitments for Annex 1 parties under the Kyoto Protocol (AWG-KP), documentation to facilitate negotiations among parties: Note by the Chair, Revised addendum, Draft decisions on other issues identified in paragraph 49 (c) of document FCCC/KP/AWG/2008/8 (FCCC/KP/AWG/2009/10/Add.3/ Rev.1, 28 August 2009).
45. Ad Hoc Working Group on Further Commitments for Annex 1 parties under the Kyoto Protocol (AWG-KP), documentation to facilitate negotiations among parties: Note by the Chair, Revised addendum, A compilation of proposals by parties for aggregate and individual figures for Annex I parties (FCCC/KP/AWG/2009/10/Add.4/Rev.1, 28 August 2009).
46. Ad Hoc Working Group on Further Commitments for Annex 1 parties under the Kyoto Protocol (AWG-KP), documentation to facilitate negotiations among parties: Note by the Chair, Addendum, Other proposed amendments to the Kyoto Protocol (FCCC/KP/AWG/2009/10/Add.2, 1 July 2009).
47. The three contact groups that met in Bangkok were: Annex I Emission Reductions; Other Issues; and Response Measures. The contact group on Legal Matters did not meet in Bangkok because it was not requested by the parties to meet.
48. Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol (AWGKP), Contact group on the Scale of Emission Reductions to be achieved by Annex I parties in aggregate as well as on the contribution of Annex I parties to this scale, Non-paper by the co-chairs of the Contact Group, Proposed amendments to the Kyoto Protocol pursuant to its Article 3, para. 9, Non-paper No. 2 (8 October 2009).
49. The term basket is used in the negotiations in reference to all issues other than flexible mechanisms and LULUCF addressed by the contact group on other matters under the AWGKyoto Protocol.
50. Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol (AWGKP), Contact group on Other Issues (mechanisms), Non-paper by the chair of the contact group, Compilation of proposals for elements of draft CMP decisions on emissions trading and the project-based mechanisms (9 October 2009).
51. See n. 50 above
52. Ad Hoc Working Group on Further Commitments for Annex parties under the Kyoto Protocol (AWGKP), Contact group on other issues (baskets), Revised Annex III to document FCCC/KP/AWG/ 2009/10/Add.3/Rev.1, Non-paper by the co-chair, Compilation of proposals for elements of draft decisions of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol on greenhouse gases, sectors and source categories; common metrics to calculate the carbon dioxide equivalence of anthropogenic emissions by sources and removals by sinks; and other methodological issues, Non-paper No. 1 (9 October 2009).
53. Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol (AWGKP), Contact group on other issues (LULUCF), Non-paper by the co-facilitators of the spin-off group, Options and proposals on how to address definitions, modalities, rules and guidelines for the treatment of land use, land-use change and forestry, Non-paper 2 (8 October 2009).
54. Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol (AWGKP), text to be forwarded by the co-chairs of the contact group on potential consequences to the chair of the AWGKP for purposes of revising document FCCC/KP/ AWG/2009/12, Contact group on potential consequences, Text on potential consequences for further consideration by the Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol at its resumed ninth session (7 October 2009).
55. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact group on enhanced action on mitigation and its associated means of implementation, Subgroup on para. 1(b)(i) of the Bali Action Plan, (Mitigation [commitments] by [developed country parties]), Non-paper by the facilitator, Non-paper No. 50 (6 November 2009).
56. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact group on enhanced action on mitigation and its associated means of implementation, Subgroup on para. 1(b)(ii) of the Bali Action Plan, Nationally appropriate mitigation actions by developing country parties, Non-paper by the facilitator, Non-paper No. 51 (6 November 2009).
57. The phased approach provides for a gradual and progressive implementation of REDD-plus activities in developing countries and is based on the following three steps: (1) institutional strengthening and capacity-building; (2) compensation for proxy-based results and scaling-up of demonstration activities; and (3) results-based compensation and implementation of national accounting systems.
58. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Subgroup on paragraph 1(b)(iii) of the Bali Action Plan, (Policy approaches and positive incentives on issues relating to reducing emissions from deforestation and forest degradation in developing countries; and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries), Non-paper No. 39 (5 November 2009).
59. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact group on mitigation, Subgroup on para. 1(b)(v) of the Bali Action Plan, Various approaches to enhance the costeffectiveness of, and to promote, mitigation actions, Non-paper No. 42 (6 November 2009).
60. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Subgroup on LCA 1(b)(vi), Economic and social consequences of response measures, Non-paper by the facilitator, Nonpaper No. 44 (6 November 2009).
61. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact group on enhanced action on the provision of financial resources and investment, Draft text, Non-paper No. 54 (6 November 2009)
62. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact Group on a shared vision for long-term cooperative action, Revised Annex I to document FCCC/AWGLCA/2009/INF.2, Non-paper by the facilitator, Non-paper No. 52 (6 November 2009).
63. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact group on enhanced action on adaptation and its means of implementation, Non-paper by the co-chairs, Non-paper No. 53 (6 November 2009).
64. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact group on enhanced action on development and transfer of technology, Draft text, Non-paper No. 47 (6 November 2009).
65. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Contact Group on enhanced action on capacity-building, Revised Annex VI to document FCCC/AWGLCA/2009/INF.2, Nonpaper by the co-chairs, Non-paper No. 46 (6 November 2009).
66. T. Akanle et al., Summary of the Barcelona Climate Change Talks: 26 November 2009, 12:447 Earth Negotiations Bulletin (9 November 2009), at 4.
67. Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol (AWGKP), Contact group on other issues (mechanisms), Non-paper by the chair of the contact group, Compilation of proposals for elements of draft CMP decisions on emissions trading and the project-based mechanisms (6 November 2009).
68. Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol (AWGKP), Contact group on other issues (LULUCF), Non-paper by the co-facilitators of the spin-off group, Non-paper No. X (4 November 2009).
69. Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol (AWGKP), text to be forwarded by the co-chairs of the contact group on potential consequences to the chair of the AWGKP for purposes of revising document FCCC/KP/ AWG/2009/12/Rev.1, Contact group on potential consequences, Annex, (Text on potential consequences for further consideration by the Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol, Tenth Session) (6 November 2009).
70. United Nations Framework Convention on Climate Change, Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies (FCCC/CP/1996/2, 22 May 1996), Rules 10 and 12.
71. The UNFCCC ROP mirrors the draft standard rules of procedure for United Nations conferences, namely Report of the Secretary- General: Draft Standard Rules of Procedure for United Nations Conferences (A/40/611, 11 September 1985). See also UNFCCC, Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies, n. 70 above.
72. The draft rules of procedure as being applied also provide for procedures to include an item after the circulation of the provisional agenda. The Secretariat shall, in agreement with the President, include any item which is proposed by a Party and has been received by the Secretariat after the provisional agenda has been produced, but before the opening of the session, in a supplementary provisional agenda (Rule 12). In addition, urgent and important items may be added to the agenda when the COP adopts the agenda, in accordance with Rule 13. See n. 59 above.
73. C. Egenhofer and A. Georgiev, The Copenhagen Accord A first stab at deciphering the implications for the EU, CEPS Commentary (25 December 2009), at 1.
74. Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, Draft conclusions proposed by the chair (FCCC/AWGLCA/2009/L.7/Rev.1, 16 December 2009).
75. Report of the Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol to the Conference of the parties serving as the meeting of the parties to the Kyoto Protocol Fifth Session (FCCC/KP/AWG/2009/L. 15, 16 December 2009), lately issued as Report of the Ad Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol. Tenth Session, held in Copenhagen from 7 to 15 December 2009 (FCCC/KP/AWG/ 2009/17, 28 January 2010).
76. See Ad Hoc Working Group on Long-term Cooperative Action under the Convention, n. 64 above, at 6
77. T. Akanle et al., Summary of the Copenhagen Climate Change Conference: 719 December 2009 12:459 Earth Negotiations Bulletin (22 December 2009), at 11.
78. On the history of COP-15, see also B. Müller, Copenhagen 2009Failure or Final Wake-up Call for Our Leaders?, Oxford Institute for Energy Studies EV 49 (February 2010).
79. On this issue, see also L. Rajamani, Neither Fish nor Fowl, Seminar 606 (February 2010), at 27.
80. See Draft Decision -/CP.15, Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention. Proposal by the President (FCCC/CP/2009/L.6, 18 December 2009), and Draft Decision -/CMP.5, Outcome of the work of the Adseq Hoc Working Group on Further Commitments for Annex I parties under the Kyoto Protocol. Proposal by the President (FCCC/CMP/ 2009/L.8, 18 December 2009).
81. See Bali Action Plan, n. 5 above, at 5.
82. Draft Decision /CP.15: Proposal by the President. Copenhagen Accord (FCCC/CP/2009/L.7, 18 December 2009), available at ?http://unfccc.int/files/ meetings/cop-15/application/pdf/cop15-cph-auv.pdf?.
83. The adoption of the Copenhagen Accord as a COP decision was formally objected to by Tuvalu, Venezuela, Bolivia, Cuba, Nicaragua, Ecuador, Costa Rica and Sudan.
84. Reportedly, countries participating in the negotiation of the Copenhagen Accord were: USA, UK, Spain, South Africa, Saudi Arabia, Sudan, Russian Federation, Norway, Mexico, Mauritius, Papua New Guinea, Lesotho, Japan, South Korea, Indonesia, India, Grenada, France, Germany, Sweden, Colombia, China, Brazil, Australia, Gabon, Ethiopia, Bangladesh, European Commission. The author is solely responsible for the listing of these countries.
85. More precisely, the information note of the Secretariat contained information about the possible quantified emission limitation and reduction objective for Iceland, Monaco, Switzerland and Ukraine and it did not include data about the objective of the USA. See Compilation of information relating to possible quantified emission limitation and reduction objectives as submitted by parties: Informal note by the Secretariat (2 November 2009).
86. In addition to the literature cited already, see D. Bodansky, The Copenhagen Climate Change Conference: a Post-Mortem, University of Georgia School of Law (12 February 2010); WWF, The Copenhagen Accord: a stepping stone?, (WWF January 2010); J. Curtin, The Copenhagen Conference: How should the EU respond? (The Institute of International and European Affairs, 2010); N. Dubash, Copenhagen: Climate of mistrust, XLIV:52, Economic and Political Weekly (EPW) (26 December 2009); E. Guérin and M. Wemaere, The Copenhagen Accord: What happened? Is it a good deal? Who wins and who loses? What is next? (Institut du Développement Durable et des Relations Internationales (IDDRI), 08/09 December 2009).
87. These include Tuvalu, Venezuela, Bolivia, Cuba, Nicaragua, Costa Rica and Sudan.
88. See Copenhagen Accord, n. 82 above, para. 4.
89. UNITAR, Glossary of Terms, Multilateral Conferences and Diplomacy (UNITAR 2005).
90. See n. 68 above.
91. On this issue, see F. Yamin, and J. Depledge, The International Climate Change Regime A Guide to Rules, Institutions and Procedures (Cambridge University Press 1994), at 43234.
92. In particular, an early leaked version of the Agreement referred to Draft Decisions -/CP.15 on adaptation, REDD-plus, technology transfer and various approaches. These decisions were never adopted by COP-15.
93. The need for additional meetings to advance with the negotiations on both the AWGs has been recognized by the Secretariat which has issued an information note dated 2 February 2010 inviting parties to submit their views by 16 February 2010 on the possible number, duration and timing of such meetings