Attempts to make Copenhagen Accord a 'plurilateral agreement'

After its decision to merely 'take note of' rather than formally adopt the Copenhagen Accord, the summit was plunged into a bitter controversy as to the legal implications of its move. Meena Raman reports.

DURING the final hours of the Copenhagen climate conference, after a decision to 'take note' of the Copenhagen Accord, high drama and intense exchanges continued among Parties to the UN Framework Convention on Climate Change as developed countries attempted to stretch the meaning of 'taking note' into forming some kind of a plurilateral agreement among Parties who had agreed to the Accord.

[The term 'plurilateral' is primarily used in the World Trade Organisation (WTO). A plurilateral agreement implies that member countries would be given the choice to agree to new rules on a voluntary basis. This contrasts with a multilateral agreement, where all members are party to the agreement.1 The WTO describes plurilateral agreements as being 'of minority interest'.2]

Confusion and controversy

Danish Prime Minister Lars Rasmussen, as current President of the Conference of Parties (COP), read out the decision on the Accord. He said that the 'COP at its 15th session takes note of the Copenhagen Accord of 18 December 2009'.  The names of the Parties that have agreed to the Accord will be stated in the Accord document.

 This decision was mired in controversy because developed countries wanted the COP to facilitate the Accord's implementation under Article 7.2(c) of the Convention.

[Article 7.2: 'The Conference of the Parties . shall make, within its mandate, the decisions necessary to promote the effective implementation of the Convention.  To this end, it shall:...

'(c) Facilitate, at the request of two or more Parties, the coordination of measures adopted by them to address climate change and its effects, taking into account the differing circumstances, responsibilities and capabilities of the Parties and their respective commitments under the Convention.']

Confusion ran high as to which forum had adopted the decision [i.e. whether it was in the setting of the COP under the Convention or COP serving as the Meeting of Parties to the Kyoto Protocol (CMP)]. The decision to 'take note of' was made at the CMP when the decision was read as having been adopted at the COP.

This 'administrative error' had to be subsequently corrected.  Whether the Accord was to be noted in the two tracks of the COP and the CMP was also unclear, with the Convention Secretariat expressing one view and Parties raising concerns on the other.

The whole way in which the decision was handled and adopted by the COP President clearly reflected a mishandling of established UN procedures.

In pushing for the Accord, the United States special climate envoy Todd Stern said that interested Parties will be informed about the Accord and they can associate themselves with it. He said that it was important for Parties to have an opportunity to associate with the Accord.

At this point, South Africa wanted a clarification as to where the decision about the Accord was made and wanted to confirm that the setting where the decision was taken was a COP setting.

The Secretariat clarified that while the proposal (regarding the Accord) was read during the meeting of the CMP (and not the COP), the text of the decision (on 'taking note') refers to the COP. It said that its understanding is that the decision would apply to both the tracks under the Convention and the Kyoto Protocol.

Bolivia stressed that the COP had taken note of the Accord and that it had not been adopted. The countries that want to associate with it will have a process, as the US has suggested. The list of the Parties in a chapeau (introductory text in a treaty provision that defines broadly its principles, objectives and background) is the chapeau of the Accord and not the chapeau of the COP decision, said Bolivia, indicating that the Accord was outside the COP process.

Outside the COP process

Saudi Arabia said that while it was one of the 26 countries that met regarding the Accord, since there is no consensus among Parties, the Accord is already outside the process of the COP.

The COP did not decide to adopt the Accord. Saudi Arabia did not want to start a precedent here. 'We cannot have countries to open a list (for signing). Whatever is done should not be part of our formal process. We need to respect the process. We should not go beyond what was done outside the UNFCCC. This is not acceptable even though we were part of that small drafting group. So we should take it as it is and we are strongly opposed to any further step to make it more formal than it is. We just took note of it (the Accord),' said Saudi Arabia.

Pakistan said that it has joined the consensus to take note of the Accord although it had concerns about the process. It said that it had no role in the process. One of the principles derived from the UN is transparency. There has been an absence of transparency. This is not what the UN stands for and is not what we are here for, said Pakistan.

It emphasised that Parties are here to reach an agreed outcome and not to cut deals.  Such processes do not help but widen the chasms. Efforts were made in good faith but that does not necessarily mean good results. It said that the Accord should not be used as a precedent in future discussions, as there were several questions regarding it and there was no time for regional discussions.

China, referring to the clarification by the Secretariat, said that in reading out the decision (regarding the Accord), there was reference to the CMP. The Secretariat had clarified that the note (regarding the 'takes note' of the Accord) would apply in the two tracks (of the COP and the CMP). China said that it was hesitant to take that view. It said that it was not sure about 'taking note' of the same Accord twice. 'If the CMP is to take note of the Accord, we will take note of that when we come to it (the CMP meeting),' it said.

The two appendices (in the Accord which separately refer to quantified economy-wide emission targets for 2020 and to nationally appropriate mitigation actions of developing countries) will cause problems especially in the CMP as it would be a way to bring new commitments and obligations under the Kyoto Protocol. (The Protocol does not impose mitigation obligations on developing countries.) China stressed the need to be aware of the connotations and implications of this.

It also expressed its concern about the follow-up procedure in relation to the Accord. The Accord was something that was 'taken note' of. It is not a treaty to be signed or agreed to.

Venezuela stressed that Parties had agreed to take note of the Accord, notwithstanding the fact that the document did not enjoy consensus. That was an expression of extreme flexibility on its part, it said. It urged Parties to respect what was agreed to (in taking note of the Accord) and not use further ploys to soil the decision agreed to.

The United States said that five countries out of 192 were not in favour of the Accord. It was a decision of the COP (to take note of the Accord). This kind of understanding is explicitly provided for under Article 7.2(c) of the Convention.

[Observers at the meeting noted that there were many Parties that had problems with the Accord and the process leading to the Accord, but these Parties did not raise their hands when the Danish COP President inappropriately asked for a show of hands of supporters and opponents in one of the many confusing moments of the meeting.]

The US said that all Parties can associate with the Accord and expected many Parties to do so and it was open to any COP Party. It hoped to have a 'robust group'.

Australia, Norway, Sweden (for the European Union), Japan and Canada echoed the suggestion by the US to request the COP to facilitate measures to implement the Copenhagen Accord.

Saudi Arabia reiterated that although it took part in the Accord, it would not want the Accord to be a precedent as Parties must work on the basis of unanimity which must be approved by all. If there is a single expression of disagreement, it will not be possible to arrive at an agreement under the COP. To 'take note' of does not mean that the document is part of a decision of the COP. The Accord is not binding on Parties. A Party is free to decide what it wishes to do with it.

Grenada, speaking for the Alliance of Small Island States (AOSIS), said that rightly or wrongly, Parties went ahead with the Accord. Its expectation was for the Accord to deliver and it looked to its rapid implementation of the Accord.

Senegal wanted to accede to the Accord and said that there should be a mechanism on modalities for accession. It asked the Secretariat to clarify matters.

 Indonesia also asked for clarification on the 26 countries which were part of the Accord.

Bangladesh also asked for the Accord to be facilitated by the Secretariat.

Mistake

d South Africa said that there had been a procedural and administrative mistake. A COP decision was adopted in a wrong setting (at the CMP). There is a need to correct the record on what was adopted formally. It elaborated on what was needed. South Africa said that there was confusion around language adopted as read from the podium and this gave rise to different interpretations. There was a need to view the record to provide the exact language. It said there was a need for a correction with a footnote as a legal opinion on what a decision means, as there was extreme confusion, as if it was some sort of binding treaty. It was a decision to note the Accord. It was a process outside the Convention process and does not mean that in noting (of the Accord) there is any binding nature, said South Africa.

On the US question as to how Parties are to associate with the Accord, South Africa said that it could be done under the report of the COP. Parties can submit their intent to be associated.

The Secretariat once again read out what the decision was, i.e., that 'the COP takes note of the Copenhagen Accord of 18 December 2009'. To this decision would be attached the Accord. In the Accord itself, the chapeau would be modified to include the list of Parties who associate with the Accord, said the Secretariat.

On how Parties can associate with the Accord, the Secretariat said that there were two suggestions. First, as a communication from the presidency, and secondly as a recording in a list of the Parties. It said that the onus was on each Party to communicate its association to the Accord.

On the suggestion by several Parties regarding Article 7.2(c) of the Convention for the COP to coordinate measures among Parties, the Secretariat said that proposals had to be made more formally in writing.

On the forum where the decision to take note of the Accord was adopted, the Secretariat said that the record would be corrected so that the decision in the CMP earlier is deemed to have been adopted under the COP, as the wording of the decision did indicate that it was the COP that was taking note of the Accord.

South Africa also said that there were Parties that had participated in the discussions in developing the Accord, while there may be a separate list for Parties who may wish to associate with it.

The Secretariat said that it was not in receipt officially of Parties who participated in the Accord and suggested that the process be one of self-designation. 

Cuba underlined that the Accord was not a protocol and is not legally binding. It was more like a declaration like the Millennium Development Goals or the Paris Declaration (on aid effectiveness). The Accord does not say that those who wish to associate with it can follow a procedure.

Tanzania said that it was not very clear as to what was adopted. It sought clarification on the link of the Accord to the extended mandate of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA). It asked if the Accord could merge with what is in the AWG-LCA.

Need for clarity

China said that there was a need to be clear on a number of issues. It was not sure of the legal implications of something which was negotiated but not adopted, and which was just proposed by the President of the COP. Parties can express their views and can have follow-up activities. If they wish to associate themselves with the Accord, it was up to each Party. There was no need for a formal procedure. It would be up to each Party to communicate to the Secretariat or by other means that they have participated in discussions. The Accord has not been endorsed as it was developed by a small group of Parties.  On the idea of a footnote, it said that it should not be part of the decision to take note but rather as a report of the COP.

In reference to Article 7.2(c), China did not think that it could apply to the Accord.  

Australia did not agree with China and said that the article could be used.  

Bolivia said that since the Accord was outside the Convention process, it had no formal identity and Article 7.2(c) should not apply. It did not see how the implementation of the Accord could be supported.

Saudi Arabia said that if Parties wanted Article 7.2(c) to be applied, this must be initiated by Parties and there must be an agenda item for it to be discussed. It said that many Parties who were part of the drafting of the Accord may now not wish to join the Accord as there is no consensus. The Accord should have no further life, it said.

Iran said that to the best of its recollection, to 'take note of' has no negative or positive implication.

India said that the listing of Parties of the Accord was not part of the COP decision.

The Russian Federation said that 'takes note' means we recognise the existence of the Accord without taking an opinion on it.  It said maybe it could be put on the Convention website.

The US said that the Accord was codified and it was surprised by comments by Parties, as the Accord says 'Parties have agreed'. It will associate with the Accord which is in the context of a political agreement. It is happy to have a list of the Parties who are associated with it.

Ethiopia, speaking for the African Union, said that it supported the Accord.

The Solomon Islands said that it did not have any opportunity to study the Accord and its implications. 'We have put our lives into the hands of 26 countries,' it said. The issue was not just about finance but about survival. It said that there is a need to talk about environmental refugees and their relocation.

Papua New Guinea said that the Accord is not perfect but it is a quick start and begins to build architecture.                                       

Meena Raman is a legal adviser ansenior researcher with the Third World Network.

Endnotes

1   http://wiki.answers.com/Q/What_is_the_difference_between_
Plurilateral_agreement_and_Multilateral_agreement

2   http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm10_e.htm

*Third World Resurgence No. 233, January 2010, pp 19-21