1. How to define and secure
a fair, ambitious and legally binding outcome from Copenhagen
• Copenhagen has to be the place and the moment to strike a deal on the fair, ambitious and
binding legal agreement upon which commitments by all Parties must rest in order to
secure the survival of countries, cultures and ecosystems.
• Achieving this is primarily up to industrialized countries, who need to unlock key
roadblocks.
• Political agreements reached on the key issues need to be captured already in Copenhagen
as legal text of a legal instrument that will require ratification.
• Having only a set of separate COP and CMP decisions as an outcome from Copenhagen
would be unacceptable.
• Key actors in the process, including the upcoming Danish COP presidency must change their
current strategies and start pursuing a legally binding outcome from Copenhagen.
• The mandate of the PreCOP to the COP Presidency and KP and LCA chairs must be to
facilitate adoption of legal instrument(s) in Copenhagen.
What is at the heart of the political struggle for Copenhagen?
In Barcelona Yvo De Boer outlined his plan for the Copenhagen outcome, suggesting that there
wasn’t enough time to complete a treaty or treaties anymore. However, it is clear that this plan B
consisting of an elaborate list of COP decisions and annexes would require no less work or time. In
reality what is lacking is trust among parties. Heads of States and ministers must ensure as a priority
that COP15 resolves the key underlying conflicts. Otherwise the Copenhagen outcome as well as any
process following from it will be doomed to fail.
1) Avoiding catastrophic climate change is not possible unless all big emitters commit to
ambitious action. However, the differentiated responsibilities must remain clear.
Industrialized countries must take their fair share of the global effort required to stay well
below 2 degrees warming and agree on their Quantified Emission Reduction Commitments,
guided by the Vienna UNFCCC conclusions they adopted two years ago.1 This will enable
major developing countries to bring their ambitious domestic actions under a legally binding
treaty.
2) In order to secure the Kyoto Protocol and its architecture, the Industrialized countries that
have ratified the Kyoto Protocol must take on a second commitment period, and the United
States must take on commitments that are comparable in ambition and legal nature to those
of the Kyoto ratifyers, in order to ensure that efforts among industrialized countries are
comparable.
1 th
At the 4 session of the AWG‐KP in Vienna August 2007 Parties recognised that achieving IPCC’s lowest
stabilisation levels would require Annex I Parties as a group to reduce emissions in a range of 25–40 per cent below
1990 levels by 2020. They also noted that this range does not take into account lifestyle changes or wider use of
flexibility mechanisms which both have potential of increasing the reduction range. Parties considered that this
range provides useful initial parameters for the overall level of ambition of Annex I targets, and that it would be
reviewed in the light of other information, such as on lower (than 450 ppm) stabilization scenarios. Online:
http://unfccc.int/resource/docs/2007/awg4/eng/04.pdf
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2. 3) Fast start finance is not enough. Vulnerable countries are already forced to adapt to
problems they didn’t cause, and paying a high price for it both in monetary terms and with
their homes and lives. While immediate funding is important, Copenhagen needs to unlock
the fundamental issues related to long‐term finance solutions, namely the scale, assessed
contributions, innovative sources, governance and disbursement of industrialized countries’
finance commitments. This money needs to be new and additional, and be committed and
provided on top of developed countries’ aid targets (0.7% ODA) including, to support
mitigation and adaptation and also solutions that address insurance, loss and damage.
Once agreement has been found on these key matters, agreement on the global ambition and
other fundamental matters including the legal form of the agreed outcome can be found. Hence,
what is needed is not more time but political will.
What defines a comprehensive and legally binding outcome?
In Copenhagen Heads of States and ministers have to secure clarity on the following key aspects of a
comprehensive, legally binding outcome:
1) Resolve all crunch issues: Come to agreement on all substantive and legal issues of the Bali Action
Plan.
• The Copenhagen outcome has to include full clarity on the global ambition, mitigation for
developed countries (economy wide targets and long term plans) and developing countries
(actions and long term plans), finance and technology support (level, sources, institutions),
and the adaptation, REDD, and maritime/aviation frameworks as well as the basic
architecture for implementation, the compliance regime for industrialized countries (building
on the Kyoto system) and facilitation mechanisms for developing countries.
• It needs to cover a sufficient level of detail on intentions and outcome, so as to not allow for
ex‐post negotiation that creates loopholes weakening the agreed ambition.
• Any important unresolved issues must not be postponed, as they would be sidelined if they
were not part of the package deal.
2) Agreement on what each Party is legally committed to do: This includes the type and level of
commitment of each Party, decisions over the system of measuring, reporting and verification of
mitigation and finance commitments and actions, the role of compliance and enforcement, including
international standards for accounting and commitments, all of which are key to the international
architecture. Commitments that equate only to “pledge and review” have little credibility and are not
acceptable.
3) Agreement on the legal foundation and architecture: The legal foundation of the agreement
needs to be decided in Copenhagen, namely by giving clarity on which legal instrument(s) will bind
parties to their commitments. Importantly, the agreement on substance needs to be captured in the
form of treaty text. The legal outcome must build on and enhance the Kyoto Protocol and the
Convention, but not replace them.
4) An agreement that cannot be reopened: The objective has to be that the agreement struck in
Copenhagen is not open for renegotiation, only open to further refinement that strengthens the legal
agreement. This means that also “entry‐in‐to‐force” language will be important to include.
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3.
There is no convincing argument to be found as to why postponing any of the above issues by half a
year or more would in any way increase the likelihood of getting a better outcome.
How to lock political agreement into legal form
Adoption of protocol(s) in Copenhagen: The most secure, legally & politically sound outcome of
Copenhagen is the adoption of the political agreement in form of ratifiable and complete treaty text
of a legal instrument. Per our proposal for the appropriate overall legal form this would be a linked
two‐Protocol outcome, consisting of an amended Kyoto Protocol and a new Copenhagen Protocol,
accompanied by a set of COP and CMP decisions. This addresses the current political situation best
(while recognizing two parallel instruments would propose some legal challenges). If necessary,
details could be finalised in form of COP decisions during 2010.
What would be an unacceptable outcome of Copenhagen
Leaving Copenhagen with only a political declaration or COP decision(s) would be a grave waste of
the momentum of the Copenhagen process, and an unacceptable outcome. The same is true for any
language that leaves open the question of what countries are committed to, or what the legal nature
of their commitments are,
The Danish Presidency is aiming for a “Copenhagen political agreement” with series of “political
commitments”, suggesting that key fundamentals could be captured into legal form only after
Copenhagen. This is a recipe for a long process with unclear results, which would also risk the whole
Kyoto Protocol with its architecture. This option is way too weak as a framework for a future
climate regime. It must be taken off the table. Countries can and must solve all key issues in
Copenhagen and capture the agreements in the framework of legal instruments under both the LCA
and the KP.
The unique momentum of Copenhagen must be fully utilized to break the deadlock
Very strong political momentum has been built up around the Copenhagen summit. Thousands of
journalists and tens of thousands of engaged citizens will be present to witness world leaders to
make the breakthrough they have promised on climate change. It is crucial to make full use of this
moment, to reach decisions and to express them in legal text that leaves no room for reinterpretation
afterwards. Very crucially this applies also to the shared vision that must not be fudged into a political
declaration. The shared vision, captured in legal text under both track outcomes, is what the world
desperately needs, recognising the right to survival of all cultures, committing to keep overall
warming as far below 2 degrees as possible, with a view of returning to below 1.5C as soon as
possible, and consequently peaking global emissions between 2013‐2017 and capturing main
agreements of all Bali Action Building blocks.
Not agreeing to a legally binding outcome as defined in this briefing can be equated with Parties not
having managed to solve the crunch issues that maintain grave mistrust. Currently, unlocking these
issues is mainly up to industrialised countries. Every year of delay will cost lives, but also economical
losses worth of 500 bln USD per year in the energy sector alone, as assessed by the IEA.
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