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After Copenhagen

So the long-anticipated Copenhagen Summit is over.  The politicians and protesters have all gone home and there is a sense of anticlimax in the air.  The result of the Summit is the so-called “Copenhagen Accord”, a non-binding commitments amongst countries to decrease their carbon emissions.  Observers have now started asking what are the implications of this result for the future of the climate change regime and indeed the future of the planet.

Many are bitterly disappointed with the outcome, as they had hoped for a new treaty on climate change.  Indeed, there have been several calls for negotiations to continue towards a legally binding instrument.  Amongst others, the UN Secretary-General has said that the deal must be made legally binding by next year (see also BBC News, PM: Still determined to get a Treaty, 21 December 2009; Copenhagen Summit website, Obama: A binding deal is still our goal, 19 December 2009).  Yet, it must be asked whether or not a legally binding instrument is really necessary to successfully address climate change.  Whilst a treaty may be formally binding, a lack of strong dispute settlement procedures means that it can still be classified as soft law (see Alan Boyle, ‘Reflections on Treaties and Soft Law’ (1999) ICLQ 901).  This is precisely the case with the Kyoto Protocol, which although binding in the formal sense, relies on soft enforcement techniques, such as its non-compliance procedure.  There is no way to “enforce” the obligations to reduce their carbon emissions under the existing Kyoto regime.  Thus, the bindingness of the commitments becomes less important than the willingness of the participants to engage in a process of changing their behaviour.  It can be argued that the formal status of the new accord is less important than whether or not the Copenhagen Conference was successfully in fostering the political will amongst states to take action, individually and collectively, to mitigate climate change.

Some have also criticised the conduct of the negotiations.  The UK Climate Change Secretary, Ed Miliband, has accused China of vetoing two deals during the negotiations (see BBC News, China rejects UK claims it hindered Copenhagen Talks, 22 December 2009).  The UK Prime Minister has also called on changes to the UN negotiating process to prevent some states blocking agreements being made.  According to the BBC News website, Gordon Brown has said that “the talks were “at best flawed and at worst chaotic”” and he has called for a reformed UN process (BBC News, Copenhagen Climate Summit held to Ransom, 21 December 2009).  This is not the first time that such calls have been made.  In 1989, states adopted the Hague Declaration on the Environment which, inter alia, called for “the development of new principles of international environmental law including new and more effective decision-making and enforcement mechanisms.”  Writing a few years later, Geoffrey Palmer argued that “to deal effectively with the global problems, a form of legislative capacity is essential”  (see Geoffrey Palmer, ‘New Ways to Make International Environmental Law’ (1992) AJIL 259).  Yet twenty years later, little has changed.  It would seem that, apart from in some very specific situations (for instance, making amendments to the technical annexes to the Montreal Protocol), there is little appetite amongst states to move away from the current consent-based system of international law, precisely because it protects their interests when they are in a minority. The advantage of the current system is that if agreement can be achieved, it is more likely that states will actually comply with the commitments that they have made.  It is for this reason that the reaching of some sort of accord at Copenhagen, even in a non-binding form, should not be dismissed as a disaster, but a positive step-forward.

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