What are the legal implications of the words “takes note of…” in the Copenhagen Accord?
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. However, it would have remained only “politically binding”.
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 may not be 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. Whether this interpretation is correct is open to question, but even if 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 (whether within the UNFCCC framework or some other forum – e.g. MEF, G20 etc) as they feel necessary to implement it.