1. What is the legal status of the Accord for the parties to the UNFCCC by virtue of the fact that the COP decided to take note of it (rather than adopt it)?
2. Does the language in para 5 (NAMAs) mean that non-Annex 1 countries that are not LDCs or SIDS must take mitigation actions and that they will be unable to avail themselves of support? If so, what is the nature of this obligation?
3. There are a number of decisions referred to in the Accord, such as the establishment of the Copenhagen Green Climate Fund. What is the force of these decisions?
1.The Accord itself is a non-legally binding agreement. As between the parties that agreed it (or subsequently associated themselves with it), it is likely, if anything, to be politically binding. This means that political consequences could flow from its breach – diplomatic responses, efforts at public shaming, withholding of discretionary funding, etc. In this sense, the Accord can be considered a strong, high level commitment by the countries that have adhered to it, and many groups are choosing to interpret it in this sense.
The Accord’s legal status would not have changed had it been adopted by the COP as it was always intended to be politically binding only. The difference between ‘taking note of’ and ‘adopting’ is that the former merely acknowledges that the Accord exists (leaving the individual countries to decide to associate themselves with it) whereas the latter endorses it and brings it formally within the UNFCCC framework. If it were adopted, this would have had to be done by consensus, meaning that no country objects to the Accord). This would then give the COP the mandate to take action in relation to the Accord.
As it is, merely ‘taking note of’ the Accord means that it is arguably outside the UNFCCC framework implying that the COP, at the moment, does not have a mandate to implement the Accord. However, as with all international negotiations, this distinction is not as relevant as it may at first appear. This is because if there is political will for the COP to take things forward, this is what will happen.
Finally, we note that it is arguable that the Accord has been brought within the UNFCCC framework by virtue of Article 7.2(c) which gives the COP, at the request of at least two parties, the authority to facilitate the coordination of measures adopted by them to combat climate change. Even if this interpretation is correct, since the COP issued no guidance on the Accord’s implementation at Copenhagen, we will have to wait until COP16 to discover how the COP intends to implement the Accord. As before, if there is the political will, there is nothing to prevent the countries who have associated themselves with the Accord taking such action as they feel necessary to implement it.
2. As with much of the rest of the Accord, the language in para 5 is vague and open to interpretation. One interpretation is that it does not obligate Non-Annex I Parties that are not LDCs or SIDCs to carry out mitigation actions and that the statement that they “will implement mitigation actions” is predictive, rather than prescriptive. The alternative interpretation is that the statement is prescriptive. On balance, we believe that the former interpretation is likely to be the correct one.
In respect of ‘support’ for mitigation actions by these countries, we believe that this is deliberately vague. Again there are two interpretations. First, is that only LDC and SIDS mitigation actions are eligible for support. However, we believe that a more likely interpretation is that non-Annex 1 countries (which are not LDCs or SIDS) may be eligible for support on a case-by-case basis as determined by (yet-to-be-established) Copenhagen Green Climate Fund.
Regardless which of the alternative interpretations is determined to be the correct one by the parties that agree with the Accord, it is important to note that the obligations on the parties are voluntary. If countries ‘sign up’ to the Accord, they will be likely to offer cuts, finance or mitigation actions. If a country ‘signs up’ to the Accord, makes a commitment, but then fails to honour it, that country could always decide to withdraw from the Accord (leaving aside issues where it may have received financial support for a NAMA) so as to avoid political consequences to not meeting its commitments. Of course, withdrawing altogether is likely to have other political consequences as well.
3. The force of these decisions needs to be seen in light of the non-legally binding nature of the Accord as a whole. Therefore, although these decisions are not legally-binding, if the parties to the Accord have sufficient political will, they will go ahead and implement it.
A number of the decisions require action on the part of the COP. To the extent that that the Accord is outside the UNFCCC, this instruction to the COP is meaningless as the COP would not have the authority to act. If the COP were to take any action in respect of the Accord, it would be possible to argue that the COP has thereby impliedly adopted the Accord, in which case there would be authority for the COP to take other action in respect of all relevant parts of the Accord.