The World Resource Institute’s Jake Werksman has penned an excellent brief analysis of the legal status of the Copenhagen Accord. Among the key takeaways of the analysis are the following:
- While the Copenhagen Accord is not legally binding, there is likely to be political pressure exerted on those UNFCCC Parties that have signed it, pressure which will likely increase because the Secretariat is establishing a process for governments to associate themselves with the accord, at which point these countries’ names will be listed next to the text. Avenues for political pressure will likely include public shaming, withholding of discretionary funding, and diplomatic pressure;
- The Copenhagen Accord was not “adopted” by Parties to the UNFCCC, but rather only taken “note of” due to opposition by several Parties; decisions cannot be adopted under the Convention absent consensus. Moreover, it’s important to remember that COP decisions are not legally binding anyway;
- However, the decision to “take note” of the Accord may imbue it with more significance than “miscellaneous” or “information” documents often submitted by the Parties during COP proceedings. During the Plenary, several parties, invoking Art. 7.2(c) the Convention to “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;”
- While the Accord is denominated as “immediately operational,” participating Parties can only immediately operationalize those parts of the Accord that don’t require a COP decision. Thus, commitments adopted by developed and developing countries under Appendix 1 and Appendix 2, respectively, can become operational immediately, while the Copenhagen Green Climate Fund, which will be part of the Convention’s Financial Mechanism, can only become operational with a COP decision. Otherwise, the funds raised under the Mechanism will have to be managed outside the Convention.