Copenhagen leaves room to move on Climate Change

19 April 2010

The Dean, Professor Gillian Triggs

The Dean, Professor Gillian Triggs and Professor Rosemary Lyster commented upon The Copenhagen Accord in a Special Report published in the Law Society of NSW Journal.

According to Professor Triggs, contrary to popular belief and despite all the appearances of failure, the Copenhagen Accord, in its aspirational and voluntary nature, offered a fruitful way forward from the misguided premise of "common but differentiated responsibilities" of the Rio Declaration of 1993.

"This [Copenhagen] is exactly how international law works - by slow cumulative processes, based on voluntary standards, supported by economic incentives.

"You don't usually get the dichotomy of all the obligations on one side, and not on the other.

"To dismiss the Accord as a valueless statement was to fail to understand the processes of international law."

Despite the gloomy picture painted in the media and public debate, there was already evidence demonstrating that international dismay was premature and misplaced.

Since Copenhagen, and as of late February, Professor Triggs said, about 100 states - responsible for more than 80 per cent of global emissions had on a voluntary basis committed to achieving targets consistent with their national capabilities, and notified the UN Secretariat of reductions and, in many cases their wish to be associated with the Accord.

Letters of accession had come in "astonishing" numbers, including from India and China, with undertakings that exceeded expectations.

Professor Triggs said the communication by China was typical, in which it states that China will: "... endeavour to lower its carbon dioxide emissions per unit of GDP by 40 to 45 per cent by 2020 compared to the 2005 level, increase the share of non-fossil fuels in the primary energy consumption to around 15 per cent by 2020 and increase forest coverage by 40 million hectares and forest stock volume by 1.3 billion cubic meters by 2020 from the 2005 levels. "

Professor Triggs also pointed out that the Accord is not legally binding and was never meant to be.

"It was crystal clear that it was not a treaty, but it might be remembered for a moment that international law recognises many words to describe a treaty.

"A legally binding treaty could be a charter, a pact, a covenant, a concordat, a declaration of interest, an agreement, an exchange of letters, a mandate, a joint communique or protocol, and even minutes of meetings could, over time, become the norm adopted in full treaties."

Professor Triggs added that it was entirely possible that, by a statement, a country could attract a legal obligation in international law.

"Perhaps the most notorious example of this was the nuclear test cases (Australia and New Zealand v France, 1974).

"The French PM had made a 'doorstep statement' that France would stop above ground nuclear testing in the Pacific, and it had been extremely interesting to international lawyers that the International Court of Justice found that, to the extent that there was an element of intention by those treaty ministers to have their statements taken as legally binding statements, they were in law binding.

"It was possible that a statement by a country becoming associated with the Accord could become a statement that was legally binding.

"Parties had deliberately only agreed to 'note' the Accord, but to therefore dismiss it was to fail to understand the process of international law.

"It might well be the first step toward a more effectively-founded agreement at a voluntary level, which states felt they could live with."

Copenhagen was,essentially, "a bottom-up" approach, Professor Triggs said, leaving all states free to determine their own targets, and breaking down the barrier between developed and developing states.

She believes that the impact of the letters of accession would be "somewhat effective".

"Internationally, states do need to be able to hold their heads up if they are to have any credibility.

"They are public documents which may not be legally binding, but may very well stimulate behaviour that will become normative.

"In turn, normative behaviour ultimately becomes customary law which is adopted in some form.

"Copenhagen thus offered a 'carrot and stick' approach - more empathetic support for developing state efforts to mitigate greenhouse gas emissions, facilitated by international funding and monitoring.

"It recognised the dynamic and organic nature of international law, and might prove to be a more effective way forward than Kyoto had been over the last 13 years.

"It was a mandate to go forward."

Professor Rosemary Lyster

Director of The Australian Centre for Climate & Environmental Law (ACCEL), Professor Rosemary Lyster said that based on the media reports "you'd think Copenhagen was an absolute fiasco, a disaster, and debacle."

"But the response has generally been quite positive among international lawyers and environmental lawyers who have been observing international agreements and the ways that they are formulated incrementally over many years," Professor Lyster said.

"We don't just look at Copenhagen and panic, and there is always an opportunity for further negotiations."

Professor Lyster said that while everyone had been concentrating on emissions trading in developed countries, people had been forgetting that between 17 and 20 per cent of global emissions came from deforestation, especially in the tropics.

This made Indonesia the third biggest emitter of greenhouse gases in the world.

"There is a lot of pressure on China and India, but it is sobering to think about the Indonesian contribution," Professor Lyster said.

The Copenhagen Accord recognised Reducing Emissions from Deforestation and Degradation(REDD) and the need to provide positive incentives, through a pool of funds to be balanced between adaptation and mitigation measures.

"REDD fell under mitigation, and its implementation might in fact be the 'new frontier of climate law'.

"The process of developing a trading mechanism around REDD would happen in stages, beginning with the development of a national strategy, then its implementation, and then a situation where REDD credits would be issued to the international community.

"Where developing countries had their Nationally Appropriate Mitigation Actions (NAMAS) monitored, reported on and verified, it would make sense, in time, to allow them to be integrated with the carbon credit market."

Professor Gillian Triggs and Professor Rosemary Lyster both are set to deliver a new postgraduate unit on Global Energy and Resources Law in September 2010.

Extracts of this article are reproduced with kind permission.

Contact: Greg Sherington

Phone: +61 9351 0202

Email: 2e4506156d245a4a4b0a270825361923243d2d19011e620b1536652343