It is clear that the Copenhagen Accord is not a legally binding international agreement. However, at the moment it is not even clear what the Accord is except for a political declaration by a limited number of countries. The Accord as it stands not only does not qualify as a treaty, but it can also not be regarded as a decision by the COP due to the opposition of a few nations. If the Accord is merely a political declaration, one could expect at least some specificity in terms of the substance of the agreement. However, the agreement is full of open-ended statements of intention, and leaves the world in the dark how crucial details should be put in practice. For instance, rather than adopting or endorsing the scientific view that the global mean temperature rise should be kept below 2 degrees Celsius, the countries drafting the Accord merely ‘recognise’ this view. Another example is that the countries that agreed on the Accord see that there is a need for global and national emissions to peak ‘as soon as possible’ but do not specify when this should happen. Also, various mechanisms and funds are called for and mentioned without any indication of the details of operation. And while a specific amount of money to assist developing countries is promised (100 billion US dollars annually from 2020 onwards), the document states that this should come from ‘a wide variety of sources’, thereby not providing any predictability about whether the funds will actually be delivered.
Of course, statements of good intentions and imprecise language are nothing new in the history of international lawmaking in the field of climate change, and can be found in both the UNFCCC and the Kyoto Protocol. Many details of the Kyoto Protocol, such as the modalities of the Protocol’s Clean Development Mechanism or its Adaptation Fund, were operationalised years after the treaty was adopted. However, it remains unclear how any details of the Copenhagen Accord can be further elaborated by the bodies established by the UNFCCC. The Accord specifies that this shall be done by the COP – yet the COP has so far not even reached consensus on the legal status of the Accord. In other words, whereas there was a clear basis for elaborating the provisions of the UNFCCC and the Kyoto Protocol, it remains unclear how any provisions of the Copenhagen Accord can be operationalised.
Still, the Accord may serve an important purpose: it encourages developed countries to list quantified economy-wide targets, and also requests developing countries to list their nationally appropriate mitigation actions. Arguably, no legally binding agreement coming out of Copenhagen could have achieved such lists given the opposition of developing countries to any legally binding commitments (or the international review of domestic actions). The Copenhagen Accord may eventually become more specific by listing the various targets of developed countries and actions by developing countries. In the period before the Copenhagen Conference, many countries had already announced unilateral targets or actions, which can now be included in this international document. And optimists could even argue that this may lead to a race to the top, where countries try to ‘out-pledge’ other countries. Furthermore, the Accord for the first time indicates that there will be some form of international scrutiny (through consultations and analysis) of developing countries’ pledged mitigation actions. Notwithstanding these positive interpretations of the Accord, only one country so far – Japan – has explicitly stated its intention to list its domestic target, and it remains to be seen how many countries will in fact be willing to list their domestic mitigation activities at the international level.
From the perspective of international law, the Copenhagen Accord is significant. First, the Copenhagen Accord hints at the limitations of the traditional forms of international lawmaking. International climate change law was already characterised by non-traditional forms of lawmaking, notably through COP decisions. The Copenhagen Accord – while clearly not falling within the traditional definition of a treaty – also seems intended to have at least some effect on the behaviour of nation states. But while the use of decisions in climate change law can be primarily justified by the complex and technical nature of the issue at hand, avoiding the use of a treaty in the case of the Copenhagen Accord was rather politically motivated: key countries did not want to sign up to anything legally binding. The question is whether countries are willing to make use of the instrument again, or whether political declarations like the Copenhagen Accord form a new modus operandi. In this regard, it is interesting to note that the Accord does not provide a timeline under which a legally binding agreement needs to be concluded, for instance, by the time of the next COP in Mexico in December 2010. Second, and related to the first point, if the Copenhagen Accord forms the de facto architecture of post-2012 climate policy, it could provide an important test of the question whether legally binding agreements are more effective than non-legally binding agreements. Third, the ‘pledge and review’ system of the Copenhagen Accord calls for a dynamic form of international cooperation, where countries should be enabled to make renewed pledges on a continuous basis. This is in stark contrast with the Kyoto Protocol’s approach of ‘targets and timetables’, where an international agreement specifies the targets for a specific period, and after the period it is assessed whether those targets have been reached. The process called for in the Copenhagen Accord resembles the negotiations in the context of the World Trade Organization, where every few years countries make new pledges to reduce their trade barriers. However, the difference with the trade regime is that for combating climate change it is important that the pledges made add up to aggregate emission reductions sufficient to avoid dangerous climate change. Fourth, it should be noted the Copenhagen Accord does not render the existing climate treaties null and void. The UNFCCC as it stands will continue to provide the framework for any climate policy developments under the auspices of the UN, while the Kyoto Protocol will also continue to exist, even though the targets for developed countries expire in 2012. In other words, traditional international law will continue to be a key point of reference for the international negotiations.
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