Reporting from Copenhagen
"Takes note of: That is a way of recognizing what is there without going so far as to directly associate yourself with it."
That's how UN climate chief Yvo de Boer described the fate of the Copenhagen Accord this morning. World leaders had hammered out what they thought was an international climate change agreement, only to watch the Sudanese speaker for the G77, Lumumba Di-Aping, shred it in 20 minutes during a midnight press conference.
With unanimous approval of the accord out of the question, officials came up with this solution: The Conference of Parties "took note" of the Copenhagen Accord but did not formally adopt it.
How the non-binding Copenhagen Accord will function from here, particularly its financial mechanisms, is unclear, legal experts say. While recognized, it exists outside of all previous agreements, and only those countries that explicitly associate with the accord are bound to it in any way.
In news conferences today, De Boer and UN Secretary-General Ban Ki-moon did their utmost to remix and spin the accord's importance.
De Boer almost made it sound like the cool new social media network:
"There is an opportunity from now on for countries to sign up to that agreement, to make it known that they want to join it, to put their targets and emissions goals on the table, to say what they are willing to contribute financially, to indicate that they want to be part of the technology mechanism, in a way, it's a vehicle that's been created that people will have the opportunity to join."
Ban tried to spin it like this:
"All countries have agreed to work toward a common long-term goal to limit temperature rise to 2 degrees Celsius, many governments have made important commitments to reduce or limit emissions, countries have achieved significant progress to conserve forests, comprehensive support for most vulnerable on climate change the deal is backed by money and the means to deliver it.
"We have the emergence of transparency and a global governance structure that will meet the needs of developing countries."
Lawyer Tim Baines with the Norton Rose Group, LLP, reiterating a concern of British climate change secretary Ed Miliband during the wee hours of the morning, explained:
"The legal basis for the adoption of the accord is not as certain as would have been adopted by way of a COP decision ... therefore it's going to require a little bit more thought."
The financial mechanism, in particular, is unclear, Baines said. Because the accord wasn't adopted by consensus, by which all parties would have been bound, it now isn't certain which body the now-voluntary agreement falls under.
One suggestion about how to fit the accord into the larger UNFCCC body is to use the convention's Article 7.2 (c). That article of the convention requires the secretariat to implement provisions under the language of "facilitation at request of 2 or more parties, the coordination of measures perceived to bind them to address climate change and their effects taking into account the different responsibilities of the parties." The accord would become such a measure for facilitation under this analysis, Baines said.
Robert Orr, the UN's deputy secretary for policy and planning, described the financial mechanism in particular as "maintaining the momentum" of the Conference of Parties talks and giving the "potential for immediate cash."
But Article 7.2 (c) is not the only way this can be done. "It's not immediately clear that you open the gate to implementation to the other aspects of the accord that rely on the accord having a legal effect," Baines says.
It depends upon the method of association by the parties. During the finishing plenary session on Saturday, most discussion surrounded the form that "association" would take.
Orr says that not everyone will associate with the agreement at once.
"Because all the parties ... have not been been able to negotiate the solution, not all are prepared to sign on immediately, so the decision that was just adopted by consensus recognizes by consensus the agreement and creates a procedure to associate themselves with that agreement," he said.
The United States' Jonathan Pershing expressed dismay at the back-off to the agreement. He said he was "surprised" at the developments, especially with those countries that were present in negotiating the treaty.
Kim Carstensen, WWF's climate initiative director, says that, should what de Boer called the accord's "significant short and long term financial support, new mechanisms for technology and forestry issues" kick in, "you can begin to operationalize the money flows. This money that we see for fast-track funding is money that will go to existing institutions."
Carstensen gives an example of £400-800 million pounds pledged by the UK to the World Bank's Climate Investment fund. It's "basically same money ... a lot of this money is recycled, and that of course diminishes the value of the overall amount."
De Boer said that in order to receive financial assistance for the quick-start adaptation and mitigation fund, countries will "have to meet certain standards of development. People will want to see and will want to co-design how that's actually going to work before being part of an international architecture."
So while it is possible to co-design the future form of the "green climate fund," its immediate form will remain under the auspices of the IMF, the World Bank, overseas development assistance with all the aid and donor agendas there in.
Those are institutions that developing countries have learned to distrust, notes Kirstin Gerber of Germanwatch.
A shred of positivity? The accord achieves symbolism.
Jei Yu, the Climate Group's China director, says that it settles the issue of transparency between developed and developing countries and dictates mutual respect for each other's sovereignty.
"I wouldn't totally say compromise, but somehow the U.S. has agreed with developing countries by recognizing the reality in developing countries rather than insisting and imposing," Yu said. "Somehow we've come to the point, let's agree with each other, that reality is reality."
"It signals a willingness to be able to talk with each other. It signals that the two parties that had most at stake there — U.S. demanding of China and China not wanting to give that they have at least found each other which I believe is the most significant part of the Copenhagen Accord."
(Photos: Copenhagen conference, Matthew McDermott; Ban and de Boer, Ann Danylkiw)