1 Overview

The recent international climate change conference in Copenhagen was the culmination of two years of intense negotiations launched by the Action Plan adopted in Bali in December 2007.

The conference was known formally as the Fifteenth Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change (COP15) and the Fifth Session of the Meeting of the Parties to the Kyoto Protocol (CMP5).

The principal outcomes of the conference were a resolution to ‘take note’ of a new political accord (Copenhagen Accord1)—which is intended to generate explicit emission pledges by all the major economies (including, for the first time, the US, China and other major developing countries)—and resolutions extending the work of two existing working groups2.

Do these outcomes amount to failure or success?

On the one hand, the conference failed to produce any legally binding agreement on the key issues which were to be addressed at the conference, and the emotive rhetoric and procedural battles witnessed at the conference suggest that a continuation of working group processes over the next 12 months will be no more productive.

On the other hand, the conference managed at the twelfth hour to produce a form of political agreement to continue processes of negotiation towards a binding agreement in a year’s time at COP16 in Mexico. Also, the conference drew a level of political attention beyond that of any previous international climate meeting. Ministers, who ordinarily attend only the final days of the annual COP, arrived in the first week hoping to progress discussions and, by its closing days, the conference had attracted 119 heads of state and government.

This political outcome is a small one given the many matters of substantial importance on the agenda for COP15/CMP5 and the large number of them which remain outstanding.

In particular, the Accord probably fails to achieve even the status of what’s known as a ‘soft-law instrument’. It has a unique status in international law, having emerged from, but not been adopted by, the conference.

Also, although some decisions were made in relation to reducing emissions from deforestation and forest degradation (REDD)3, and in relation to the Clean Development Mechanism (CDM)4 and the Joint Implementation (JI) mechanism5 under the Kyoto Protocol, these decisions describe the further work to be undertaken towards the development and clarification of new rules rather than the rules themselves or the parameters for them. The Copenhagen Accord deals with some of these matters—in particular, its establishment of a REDD-related mechanism6—but the details of these matters must await the outcome of further meetings of the COP.

As US President Obama said, in a press conference immediately before leaving Copenhagen, the conference was only a ‘first step’ towards a new era of international action, and substantial challenges face negotiators over the next 12 months in obtaining legally binding commitments. In particular, there is a ‘fundamental deadlock’ facing these negotiators: the developed (Annex I) countries are making further, legally-binding commitments conditional on corresponding commitments by the major developing (Non-Annex I) countries; but those countries are reluctant to give such commitments.

Clear evidence of this deadlock is the failure of the Copenhagen conference to answer the question of the legal structure for future commitments. Many Annex I countries, including the US and Australia, advocated the replacement of the Kyoto Protocol with a new protocol under the United Nations Framework Convention on Climate Change, one which would include mitigation commitments both for Annex I countries and for major developing Non-Annex I countries such as China, India and Brazil. The so-called ‘G77 countries’ (including China) resisted this strongly, advocating instead a ‘two-track’ process involving continuation of the Kyoto Protocol (with new targets for Annex I countries under it) and a new instrument that would implement the key elements of the Bali Action Plan. The Copenhagen Accord addresses this issue only by noting that the further undertakings to be provided under it by Annex I parties ‘will…strengthen the emissions reductions initiated by the Kyoto Protocol’.7

2 Copenhagen Decisions8

2.1 Key Decisions of COP15

The Key Decisions of COP15 were as follows:

  1. to ‘note’ the Copenhagen Accord (as appended to the decision)9
  2. to extend the mandate of the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA) ‘with a view to presenting the outcome of its work…for adoption’ at COP 1610
  3. (concerning reducing emissions from deforestation and forest degradation (REDD)): to promote further guidance and guidelines on the estimation of sources and sinks11
  4. (concerning National Communications by Non-Annex 1 Parties) to extend the mandate of Consultative Group of Experts for another two years12, and
  5. (concerning capacity-building): to continue the work of the Subsidiary Body on Implementation.13

2.2 Key Decisions of CMP 5

The Key Decisions of CMP 5 were as follows:

  1. to extend mandate of the Ad Hoc Working Group under the Kyoto Protocol (AWG-KP) with a view to presenting the outcome of its work for adoption at COP 1614
  2. (concerning the Clean Development Mechanism (CDM)): to extend the work program for the Executive Board of CDM concerning: improvement of transparency, efficiency and impartiality; development of baseline and measuring methodologies for under-represented activities and regions; and further work on guidance about additionality15
  3. (concerning Joint Implementation (JI)): to adopt revised rules of procedure; to urge further work by the Joint Implementation Supervisory Committee on various matters16, and
  4. (concerning capacity-building): to continue the work of the Subsidiary Body on Implementation.17

3 Copenhagen Accord

3.1 Key elements

The key elements of the Copenhagen Accord are as follows:

  1. It states an aspirational goal of limiting global temperature increase to 2 degrees Celsius.18 It ‘[recognizes] the scientific view that the increase in global temperature should be below 2 degrees Celsius’. It also calls for a review of the Accord by 2015, including a consideration of strengthening the long-term goal ‘in relation to temperature rises of 1.5 degrees Celsius’.19
  2. Developed (Annex I) countries are to identify by 31 January 2010 the new commitments which they will make with respect to emissions reductions by 2020.20 These are to be entered into an Appendix to the Accord. It is expected, but not specified in the Accord, that the targets and actions entered will be consistent with those proposed by those countries immediately prior to the Copenhagen conference.
  3. Developing (Non-Annex I) countries—other than the ‘least developed countries’ (LDCs) and small-island developing states—are to identify nationally appropriate mitigation actions (NAMAs) which are to be set out in an Appendix to the Accord that is to be completed at first instance by 31 January 2010 and which may be subsequently added to.21
  4. It declares the ‘immediate establishment of a mechanism…to enable the mobilization of financial resources from developed countries’ to support efforts to reduce emissions from deforestation and forest degradation and to enhance forest sinks.22
  5. It contains a commitment by developed (Annex I) countries to contribute approximately US$30 billion over the next three years to support mitigation and adaptation activities in developing (Non-Annex I) countries, with adaptation funding to be focused on the LDCs and small-island developing states.23
  6. It contains a commitment by developed (Annex I) countries to a goal of jointly mobilizing US$100 billion each year by 2020 for mitigation action, conditional upon transparency with respect to the implementation of mitigation actions.24
  7. It calls for the establishment of a High Level Panel to explore potential sources of revenue25, and the establishment of a Copenhagen Green Climate Fund to support mitigation and adaptation projects under the Kyoto Convention.26

4 Future meetings

The Parties decided that COP16/CMP 6 will be held from 29 November 2010 to 10 December 2010, in Mexico and that COP17/CMP7 will be held from 29 November 2011 to 10 December 2011 in South Africa.27

The only meetings presently scheduled for the AWG-LCA and the AWG-KP are in a two week session in mid-2010.

5 What does it mean?

5.1 Globally?

The resolutions at COP15/CMP5 provide an impetus for:

  1. continued development of the Clean Development Mechanism (CDM), which supports developed nation investment in developing nation emission-reduction projects and generates connected credits (called Certified Emissions Reductions (CERs)) likely to be acceptable under the Australian Government’s proposed Carbon Pollution Reduction Scheme (CPRS), and
  2. development of mechanisms reducing emissions from deforestation and forest degradation (REDD) which are likely to be significant sources of low-cost emissions reductions and are also likely to be acceptable under the CPRS.

Also, the Copenhagen Accord provides an impetus to passage in the US Senate of legislation for a cap-and-trade scheme after passage of similar legislation in the US House of Representatives in 2009. However, although such legislation has the backing of President Barrack Obama, its passage has faced, and will continue to face, persistent opposition and is by no means guaranteed, despite the Copenhagen Accord.

5.2 For CPRS legislation in Australia?

Similar considerations apply in Australia. The government has stated that it will reintroduce legislation for its CPRS into Federal Parliament when it first reconvenes on 2 February 2010. Such legislation has faced, and will continue to face, persistent opposition and its passage is by no means guaranteed, despite the Copenhagen Accord.

The legislation to be introduced on 2 February 2010 will differ from the legislation which was rejected in late November 2009, namely: the Carbon Pollution Reduction Scheme Bill 2009 (Cth) [No 2] (CPRS Bill). The new legislation will include the amendments negotiated with the Opposition (as then led by Malcolm Turnbull) announced on 24 November 2009.28 Accordingly, the new legislation will not provide a double dissolution election trigger unless and until a second Senate defeat of it occurs (in May 2010 at the earliest). A number of constitutional factors may determine the likely date for such an election or for a normal House and half-Senate election.29 The earliest possible date for a normal election is 7 August 2010. In any double dissolution or normal election, climate change issues are likely to be key ones, especially given the distance between the government and Opposition on them.

Until these matters take their course, and despite the persistent and growing signs that some form of carbon regulation in Australia is inevitable, considerably uncertainty will remain as to the form and timing of that regulation.

5.3 For emissions targets in Australia?

The CPRS Bill stated as an object the Federal Government’s long-term target of a 60 per cent reduction in national GHG emissions from 2000 levels by 2050, and its mid-term target of a reduction by between 5 per cent and 15 per cent below 2000 levels by the end of 2020. Precise annual caps would be prescribed under the CPRS Bill by regulation.

Announcements on 4 May 2009 committed the Federal Government to deeper emission cuts by 2020 if and when an ambitious international agreement emerged. The commitment is to reduce Australia’s carbon pollution by 25 per cent below 2000 levels by 2020 if there is international agreement is to stabilise levels of CO2e at 450 parts per million.

Clearly, this condition was not met by the outcomes of the Copenhagen conference.

Prime Minister Rudd has stated that his government will consult with other governments in the period leading up to 31 January 2010 and, on the basis of these consultations, will then assess the aggregate emissions reductions that would result from the implementation of the commitments which the Copenhagen Accord contemplates will be made by that date.

5.4 For forestry in Australia?

The ongoing activities of the AWG-LCA and the AWG-KP on the issues of:

  1. land-use, land-use change and forestry (LULUCF), and
  2. reducing emissions from deforestation and forest degradation (REDD)

will be important for Australia. An international agreement on including LULUCF in the Clean Development Mechanism (CDM), if this were to emerge, would advance the possibility of affording legal status domestically for a range of emissions abatement practices (such as soil sequestration) in the agricultural sector. Also, the CPRS Bill contains a mechanism for the possible legal domestic recognition of REDD measures if and when those measures are afforded international legal recognition.  

6 Next steps

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