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Introduction

The end of the first decade of the 21^st century will be long remembered by the international climate change community. Those present at the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC)¹ in Copenhagen may remember waiting in queues in the cold for nine long hours, after which they were denied entry to the conference premises for unclear reasons. Observer organisations, including civil society, business, research and youth constituencies, may remember the significant restrictions on their access to the decision-making process, due to security considerations and the limited capacity of the Bella Centre in Copenhagen, where the conference took place. Others may remember the media hype leading up to the conference, with presidents, prime ministers, rock and movie-stars announcing their attendance in Copenhagen, keen on witnessing the emergence of a new international climate change agreement in the Danish capital. Yet others may remember the unprecedented negotiation chaos that ensued in the last few days, with emotions running higher than ever before, and accusations between developing and industrialised countries – and among developing countries themselves – flying back and forth. Eventually, talks at the highest political level lead to a text, the Copenhagen Accord. The document was not viewed as an acceptable outcome by all parties, therefore leaving its legal status in limbo.

This short essay provides one observer’s account of what happened in the run-up to, and during, the Copenhagen summit. I will first briefly discuss the scientific basis for climate change policy, which came under fire only a few weeks before the COP. I will then turn to the political game that took place in Copenhagen and that led to the Copenhagen Accord.² I will conclude with a few observations on how the role of international law might change in international climate change policy beyond 2012.

I. The Science…

There is a solid scientific basis for international action to mitigate the causes and impacts of climate change. In particular, the most recent report produced by thousands of scientists gathered in the Intergovernmental Panel on Climate Change (IPCC) concluded with 90% certainty that human activities contribute to an increase in the global average temperature. Still, the science underlying climate policy is under regular attack by sceptics questioning, inter alia, the attribution of climatic changes to human activities, the extent to which climate change impacts are adverse, and, in their eyes, the excessive costs of implementing climate change policies. Just a few weeks before the Copenhagen Conference, these sceptical voices could once again be heard when the news of so-called ‘Climate-gate’ broke. In the media, allegations arose that someone hacked e-mail accounts of researchers of the Climate Research Unit of the University of East Anglia, United Kingdom that showed there was reason to doubt the very foundations of international climate change policy, and that a large-scale conspiracy was underway to silence those who questioned the human influence on climate change.

In my view, the ‘Climate-gate’ affair by no means undermines the scientific basis for climate change action. First, the scientific evidence for the anthropogenic influence on climate change certainly does not only stem from the research discussed in the e-mails, but is provided by various strands of research in a plethora of disciplines. The e-mails were presented out of context, and narrowly focused on one set of climate reconstructions, whereas other scientific results have also supported the hypothesis that climate change is caused by greenhouse gas emissions from human activities. Second, there are and will always be uncertainties in science. However, rather than not taking action at all, it is important that these uncertainties are made transparent to decision-makers, enabling them to manage the risks. Indeed, in accordance with the precautionary principle, a lack of full scientific certainty should not be a justification for inaction. Again, references to the IPCC, as well as the 2006 Stern Review and various academic bodies, should provide a clear indication that there are very good reasons for concern. Third, I find it intriguing, to say the least, that while most media reports discuss in detail how the e-mails would undermine current climate science, almost no journalist has investigated why these e-mails were leaked, or has questioned the when – i.e. a few weeks before the Copenhagen Conference. Nevertheless, the e-mails – or better, the reactions to the e-mails – show that climate scientists have a serious public relations problem. Apparently, media and public opinion are prone to listen to any message that casts doubt on the scientific basis, dismissing calls for action as ‘alarmism’. This points to the need for better forms of communication of climate science to the broader public, as well as greater transparency in the conduct of research.

Rather than further discussing the science – which, in my opinion is pretty much settled, although there should always be room for reasonable scientific debate – I will now turn to the political games that have been played before, in, and after Copenhagen.

II. The Politics…

Expectations for Copenhagen were high, and not without reason. Two years before, in Bali, Indonesia, all Parties to the UNFCCC had agreed to come to a new international agreement through the ‘Bali Action Plan’. The Bali meeting was a crucial moment in the UNFCCC process to set in motion negotiations on a follow-up agreement to be concluded before the greenhouse gas emission reduction targets for industrialised countries enshrined in the Kyoto Protocol expire in 2012. Between Bali and Copenhagen, parties met frequently; in 2009 alone, there were six formal negotiation sessions. The discussions were organised along two formal processes. The first was the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA), the only forum to include all Parties to the UNFCCC, including the United States, which had refused to ratify Kyoto in 2001. The other was the Ad Hoc Working Group on the Kyoto Protocol (AWG-KP), which aimed to come to an agreement on targets for the developed countries participating in the Protocol (including the countries of the European Union, Japan, Canada and Australia) for the period after 2012.

Both negotiation tracks were aimed at coming to a new agreement, but disputes arose and exacerbated as to how the tracks should eventually be connected with a view to arriving at one comprehensive agreement, and whether they should converge at all. For developing countries, it was of the utmost importance to keep the Kyoto track separate from the Convention track; after all, the Kyoto Protocol does not contain any legally binding emission reduction or limitation commitments for these countries, while it does set them for the developed countries. Merging the two tracks, in the developing countries’ view, could result in the imposition of such commitments on developing countries, now or in the near future. For many developed countries, this was precisely one of the reasons why their focus was on the AWG-LCA. Countries like the US, Australia and Japan had argued that the distinction between developed and developing countries was no longer appropriate and that, while emissions abatement needed to continue in the industrialised world, increased emphasis should be placed on action in key emerging economies with rapidly growing emissions, including China, India, Brazil and South Africa (the ‘BASIC’ countries). For these developed countries, it was of crucial importance to involve the BASIC countries in an international agreement on climate change mitigation. For the EU, it was also imperative to more actively involve all major emitters. This meant that its focus was primarily on the AWG-LCA, the only track to include both the US and the BASIC countries. However, the EU also had an interest in retaining the legal architecture established by the Kyoto Protocol: a legally binding agreement including emission reduction targets and emissions trading mechanisms which allowed countries to reduce their emissions cost-effectively. The EU had been instrumental in ‘saving’ the Protocol after the US had rejected it; and the EU had fully embraced the market mechanisms introduced by the Protocol.

Some weeks before the Copenhagen Summit, it became increasingly evident that a legally binding agreement would be an unlikely outcome in Copenhagen, and that a set of detailed political decisions, including a timeline for getting to a legally binding treaty, would be the best possible result. Not only had the negotiations become incredibly complex, with negotiation texts of almost 200 pages circulating earlier in 2009, it was also clear that some of the crunch issues – including mitigation commitments and actions by developed and developing countries, and financial support for developing countries – would be very difficult to resolve. While this development lowered expectations, the stakes for Copenhagen were raised by the presence of more than 100 heads of government in the second week, an unprecedented event – not even in Kyoto did so many world leaders attend a climate change conference. Expectations were thus high – perhaps unreasonably so – that heads of government could break the deadlock that had prevailed in the negotiations for more than two years. Surely, President Obama would not come to Copenhagen unless there was something to sign, right? Furthermore, Copenhagen was preceded by a large number of unilateral pledges by countries to reduce or limit their greenhouse gas emissions, including Brazil, China, South Africa and Japan. The EU had already put in place a legislative framework to reduce its emissions by 20% in 2020 compared to 1990 levels, and had stated its intention to raise this to 30% if other industrialised countries joined. While the US had not made a similar pledge, legislative discussions at the federal level in the US showed that the country might be willing to agree on an emission reduction of 17% by 2020 compared to 2005 levels (amounting to a 3% reduction compared to 1990 levels), an ambition level endorsed by President Obama shortly before the beginning of the Conference. In other words, there were some positive signs that countries were ready to enhance their climate change mitigation efforts.

Despite these expectations, the first week of the Conference continued the stalemate that had characterised the discussions in the past two years. The most notable event was the emotional intervention by a delegate of Tuvalu, a small island nation in the Pacific under threat of rising sea levels, calling for a legally binding agreement to save the country from drowning. In the second week, things heated up when several countries accused the Danish COP Presidency of being biased and non-transparent after it had announced to work with a negotiation text that was not solely based on the texts coming from the AWG-LCA and the AWG-KP. The second week was also marked by the arrival of the heads of government. Those expecting that they merely came to rubberstamp a text agreed upon by the delegates were wrong. On the contrary, key issues such as finance and mitigation were still unresolved by the time all world leaders had arrived.

On the last official day of the conference, all eyes turned to the US. In the morning, President Obama gave a speech to the COP, disappointing many observers when he failed to go beyond the known US position at this point. However, Obama’s arrival did mark the start of a series of high-level meetings. Whereas the drafting of texts had so far taken place in small groups of country delegates, it was now a small group of world leaders that took up the challenge to arrive at a text that would be acceptable to all countries. On the last evening, an agreement was reported between around twenty-five countries, including the US and all the BASIC countries. This agreement – the Copenhagen Accord – was not the end point of the conference, however. In fact, the non-transparent drafting process of the Accord provoked intense reactions of disappointment and disgust by some of the countries that had not been involved. Nevertheless, most countries agreed on the text, albeit reluctantly. Still, for the text to become a formal decision taken by the UNFCCC COP, it needed to be adopted by consensus, which proved to be impossible given the rejection by a small group of countries, including Sudan, Bolivia, and Venezuela. Eventually, countries decided to ‘take note’ of the Accord and to list the countries endorsing at the top of the document. What this means in practice remains to be seen.