The fifteenth Conference of Parties (“COP 15”) to the United Nations Framework Convention on Climate Change (the “Convention”) and the fifth meeting of the parties to the Kyoto Protocol ended in Copenhagen with seriously mixed feelings on big picture issues. Some took comfort from the fact that for the first time a substantial percentage of the world’s heads of state and governments attended the talks. Some of those leaders, most notably of the United States, India, China, Brazil and South Africa (the latter four jurisdictions now being referred to as the BASIC group of countries), participated in the negotiation of the Copenhagen Accord (the “Accord”), a political document that has at this time little or no legal standing and that will come to define the talks. Many feel the negotiations were a failure as they did not result in a legally binding agreement with ambitious and fair commitments dealing with climate change mitigation and adaptation.

The two ad hoc working groups established in Bali two years before COP 15 delivered reports reflecting the state of negotiations on various issues. The reports were received and the mandates of each working group were renewed with a view to their work continuing through to and reaching a conclusion during the next plenary meetings of the parties to be held in Mexico City later in 2010. The work of the groups is not reflected in the Accord. Also, dates for the resumption of the ad hoc group’s work have not been set and there is concern regarding funding for that work.

It remains to be seen how the work started in Bali will proceed whilst key parties move to “operationalise” the Accord in anticipation of it effectively replacing the Kyoto Protocol with a fundamentally different, bottom up approach to emissions reduction. The next scheduled Convention meeting will be held in Bonn in May. Leadership may arise from meetings of the BASIC countries pending clarity of legislative progress in the United States.

It also remains to be seen how much of the work of the Convention's supporting scientific and administrative bodies will progress on a host of important multilateral issues whilst the attention of key parties shifts to the Accord.

The Accord

Though a political document with no legal standing and notwithstanding serious procedural concerns expressed by many countries, the Accord is likely to be the basis on which future multilateral action on climate change proceeds. The Accord is not a protocol, an amendment to the Convention or even a COP 15 decision. COP 15 “took note” of the Accord but did not formally adopt it. A procedure is being developed for parties to register their support for the Accord and file non legally-binding mitigation targets by January 31, 2010.

The Accord provides that:

  • the underlying objective of the Convention is to limit global warming to 2 degrees Celsius in the context of common but differentiated responsibilities and capabilities and acknowledging the importance of funding adaptation by the vulnerable;  
  • science requires deep cuts in global greenhouse gas emissions and that global and national emissions should peak as soon as possible recognizing that developing nations will take longer given their continuing development needs;  
  • whilst a global issue affecting everyone, developed countries “shall provide adequate, predictable and sustainable financial resources, technology and capacity building to support the implementation of adaptation action in developing countries”;
  •  Annex 1 (developed) parties commit to implement “individually or jointly” quantified economy wide emissions reduction targets for 2020 to be communicated to the secretariat of the UNFCCC by January 31, 2010 and that Annex 1 parties to the Kyoto Protocol (such as Canada) are expected to make commitments that “further strengthen the emissions reductions initiated by the Kyoto Protocol”;
  • non-Annex 1 parties will implement mitigation actions including those they may commit to in a filing with the secretariat and agree that nationally appropriate mitigation actions that seek international support (technology, finance and capacity building) shall be registered and subject to measurement, reporting and verification;  
  • there is a crucial role for the reduction of deforestation and forest degradation (“REDD plus”) and a mechanism needs to be established to mobilize financial resources from developed countries for REDD plus;  
  • various approaches including market mechanisms are needed to enhance the cost effectiveness and promotion of mitigation actions, particularly in low emitting developing countries;  
  • “new and additional, predictable and adequate funding as well as improved access” to developing countries with a collective commitment of USD 30 billion from 2010 to 2012 and a goal of USD 100 billion per year by 2020 to “enable and support enhanced action on mitigation (including REDD-plus) adaptation, technology development and transfer and capacity-building, for enhanced implementation of the Convention”;  
  • a significant portion of the funding referred to above flow through the “Copenhagen Green Climate Fund” to be established under the Convention;  
  • a “High Level Panel” accountable to COP 15 be established to study potential sources of revenue and alternative sources of financing;  
  • a “Technology Mechanism” be established to enhance action on development and transfer of technology that will support mitigation and adaptation; and  
  • implementation of the Accord be assessed by the end of 2015 with regards to the long term objectives of the Convention in particular whether it is warranted that the long-term goal be adjusted to keeping temperature rises from exceeding 1.5 degrees Celsius.

There have been reports that Canada has already indicated to the secretariat that it will be registering its commitments within the deadline. Recent public statements suggest nevertheless that it continues to be the Government of Canada’s position that it will not regulate until a clear picture emerges of how the United States will regulate emissions. It remains likely that several of the provinces will follow Alberta’s lead and introduce regulations notwithstanding the federal position and will have commitments that differ from Canada’s commitment to the Accord.