‘ FROM RIO TO COPENHAGEN : FROM CONSENSUS TO CONFLICT ? ’

Expectations for a climate deal were high at Copenhagen in December 2010. Although there were rumours of conflicts, the hope was that in the very last hours a deal would be struck that would set the stage for activities in the coming years. This has, after all, happened often in the past. The overwhelming presence of heads of state and government, senior officials, the private sector, scientists, NGOs and journalists within the negotiating arena, and the presence of demonstrators outside the arena should have augured well for the negotiations. Yet the meeting ended, paraphrasing T.S. Eliot, ‘not with a bang, but with a whimper’, as the end result was The Copenhagen Accord. This accord was merely noted, not adopted. It does not set a global mid-term or long-term reduction goal although it accepts that average global temperatures should probably not be allowed to rise beyond 2 degrees Celsius in relation to pre-industrial levels, it does not provide for clear short-term reduction targets for the developed countries instead inviting all countries to make offers and to list these in an Annex, and it does not provide a legally binding commitment to provide financial help to developing countries, although it states that there is a commitment to try and generate USD 30 billion in the period 2010-2012 and USD 100 billion annually in 2020.


Introduction
Expectations for a climate deal were high at Copenhagen in December 2010.Although there were rumours of conflicts, the hope was that in the very last hours a deal would be struck that would set the stage for activities in the coming years.This has, after all, happened often in the past.The overwhelming presence of heads of state and government, senior officials, the private sector, scientists, NGOs and journalists within the negotiating arena, and the presence of demonstrators outside the arena should have augured well for the negotiations.Yet the meeting ended, paraphrasing T.S. Eliot, 'not with a bang, but with a whimper', as the end result was The Copenhagen Accord.This accord was merely noted, not adopted.It does not set a global mid-term or long-term reduction goal although it accepts that average global temperatures should probably not be allowed to rise beyond 2 degrees Celsius in relation to pre-industrial levels, it does not provide for clear short-term reduction targets for the developed countries instead inviting all countries to make offers and to list these in an Annex, and it does not provide a legally binding commitment to provide financial help to developing countries, although it states that there is a commitment to try and generate USD 30 billion in the period 2010-2012 and USD 100 billion annually in 2020.
What was agreed upon scarcely resembled the hopes of many, as several nations participating in the Copenhagen conference refused to support the accord.This raised questions as to whether the few developing countries who blocked the adoption of this agreement, arguing that it didn't go far enough, were right to do so, or if they weakened their already poor bargaining power?This essay attempts to answer these questions by reflecting on how the negotiations have evolved in the last twenty years.

The Original Consensus
Once the climate change issue reached the international political agenda in 1988-89 and became institutionalized within the UN system in 1990, it took two years to develop the framework and principles needed to address the problem.There was clear consensus on the core idea that the richer countries that had polluted the atmosphere first should take the first steps to reduce their emissions and make room for the Global South to grow.However, in order to ensure that the South did not emit emissions at very high levels, it would be important for the richer countries to make modern and less emitting technologies and resources available to the South (to help them develop more sustainably and to adapt to the potential impacts of climate change).This was the social contract underlying the agreement.
Within five years, clever use of language reversed the responsibility.The US reframed the debate in terms of the free-rider argument.Why should key developing countries get a free ride on the action that the US should take?A subtler shift has been in the area of financial responsibility: who should pay and what modalities should be used?
The Free-rider Issue Since the industrial revolution, a small group of countries that industrialised rapidly have been emitting large quantities of greenhouse gases.Scientists have noted the impact of greenhouse gases on the global climate since the middle of the 19 th century.By 1990, the emissions had reached substantial levels, and the bulk of the emissions could be attributed to the developed countries.Clearly the developed countries were responsible for creating the problem and it would be up to them to address the problem first and to help the developing countries avoid taking the same route as the North had done, but instead to 'leap-frog' ahead.
In 1996, under the influence of the Byrd Hagel Resolution, the US began to argue that if China and the other major developing countries did not adopt serious targets, it would be pointless for the US to do so.They further argued that taking measures in the US alone would hurt the US economy while giving businesses elsewhere in the world (e.g.China) an unfair advantage, making their products more competitive in the international market.This argument has snowballed since then, and in the developed world it has become increasingly logical to question the emissions from the less developed nations.The press nowadays seems to call for the US and China to take action in the same headline, reinforcing this new message.
However, it may be useful at this point to revisit the arguments.A free-rider benefits from the actions of others.I would argue that since the bulk of past emissions are responsible for the current changes in the climate, it is the past emitters that are the free-riders if they don't take serious emission reduction measures.Also given the Copenhagen Accord wish to contain the most serious impacts of climate change by keeping global average temperature rise below 2 degrees, then the total budget of allowable emissions runs out fairly soon (in 2036 if the UNDP calculations of 2007 are accurate).Emissions from the South, today and in the coming years, will have an impact on the future.The pressure being put on the South, and in particular China, does not acknowledge that the developed countries have been primary cause of the present impacts of climate change.Instead, the developed countries are perceived as trying to ensure that (a) the repercussions on the US and other developed countries at present in economic terms is limited, and that (b) the long-term impacts of climate change on the future generations of the developed countries is minimized to below a 2 degree warming..For the developing countries, the current impacts of climate change exacerbate their existing problems and this is a very pressing priority.
A 2-degree warming level is often seen as inadequate to protect the small island states.This fundamental argument needs to be kept in mind.The argument that the lack of Chinese commitment renders the impact of US potential mitigation action as useless does not explain to the smaller developing countries why they are currently exposed to climate change impacts.Finally, if the developed countries take serious emission reduction measures, this will imply the development of newer technologies and different consumption and production patterns which are then more likely to be imitated and/or adopted by the developing countries.
Although it is the US that has clearly articulated the switch in the free-rider argument, the behaviour of the other developed countries also shows that their rhetoric is often not accompanied by action.Prior to the climate negotiations of 1992, Australia and Canada were willing to stabilise their non-CFC greenhouse gases in 2000.The Netherlands was willing to reduce CO2 emissions by 3-5% in 2000 and New Zealand was willing to commit to a 20% reduction in 2000.All the OECD countries at the time, with the exception of the US and Turkey, claimed to be willing to at least stabilise their CO2 emissions by 2000 at 1990 levels.In 1992 a weak form of the latter target was adopted in the Climate Convention, but since the wording was vague, this was not particularly meaningful.By 1997, the situation had deteriorated and Australia was now arguing for a +18% target, eventually settling for a +8% target in 2008-2012.New Zealand settled for a stabilisation target in 2008-2012.The willingness to commit was reducing and the targets accepted in 1997 in the Kyoto Protocol did not imply that the developed countries would take actions exclusively within their national jurisdictions; they could purchase emission reductions elsewhere in the world if they wanted to do so.Prior to Copenhagen, many countries offered to take up serious new targets.The EU offered an unconditional 20% reduction target, Norway a -40% target, Japan a -25% target, and the developing countries including Brazil, China, India, Indonesia, Mexico, and South Korea all made offers as well.However, at Copenhagen the consensus was a blank sheet to be filled in subsequently by parties of the offers that they are willing to adopt!Since Copenhagen, Australia has now put an unconditional offer of -5% in 2020 with respect to 2000 (not 1990).Most of the other countries have conditional offers.Everyone seems to be waiting for everyone else to act, and the system, which was once based on a clear leadership agreement, has been mired in the free-rider discourse.Everyone is waiting for the last freerider to take action, and leaders have become laggards.

Financial Responsibility
The second part of the original consensus was that developed countries would provide resources and technology to ensure the fulfilment of developing country commitments under the climate regime.This was stated both in terms of the responsibility of the developed countries (i.e. they should provide assistance) as well as in terms of the developing countries (i.e. the extent to which they take action depends on the assistance they receive).This created the expectation that resources commensurate with the mitigation and adaptation needs would be made available to the developing countries.However, the resources in the Global Environment Facility were quite limited and focused only on global (not local) benefits, which initially excluded adaptation.The adaptation fund was initiated in 1997 and in effect, since 2008, is financed through a levy on North-South cooperation -the Clean Development Mechanism.In recent years, the resources needed for mitigation and adaptation activities in the developing world are seen to be in the order of USD 200-300 billion a year, but the resources available are more in the nature of millions.Development cooperation has just reached a high point of 120 billion USD in 2009 and that has taken a very long time.It seems unlikely that the kind of resources needed for climate change are likely to be generated over and above the existing official development assistance.Instead the new trend of 'mainstreaming climate change into development cooperation' may mean that development cooperation resources are relabelled as climate resources or redirected to climate goals.At Copenhagen, the Accord provided an idea of the kind of resources that the developed countries should generate, but does not make these resources a state responsibility, suggesting instead that all social actors will have to raise these resources.It falls short of stating how and why.

Conclusion
There was a fairly clear consensus in 1992 about the principles and approaches to assigning responsibility between countries on the climate change issue.This consensus reflected several political and scientific declarations that had been adopted in different parts of the world in the previous decade.It also reflected the economic and political status of countries at the time.This consensus has been evaporating rapidly since then.The targets of 1997 were scarcely stronger that the weakly worded target in the 1992 Convention, and today we have one unconditional commitment from the EU while all the others are playing with the numbers by varying the base year to make their targets sound substantial.A -17% target in 2020 with respect to 2005, amounts to probably no more than a -4% target with respect to 1990.The free-rider argument has been turned on its head in order to legitimise the argument that unless China and India take action, there is no real reason for the US to do so.The principle that some countries should be held accountable to compensate for the damage caused to others has morphed into an idea that rich countries should help others, but the degree of help depends on their own good will.We have moved from consensus to conflict, and from leadership to conditionality.It seems that the only way out is if China takes the lead!This may also be logical as the political and economic power of the US diminishes in the context of a multi-polar world.
A handful of developing countries were so disappointed with the outcome of the Copenhagen agreement that they refused to accept its adoption.The question is, does this strengthen or weaken their position?Would accepting a deal be better than not accepting a deal?Or is accepting the deal worse than not accepting the deal?In the ultimate analysis, no one cares whether this document is simply noted or adopted; it remains a soft law document whose implementation will depend on whether the developed countries and the large developing countries are politically willing to go ahead.In other words, these countries have probably neither weakened nor strengthened their negotiating position.They have refused their support to demonstrate their disappointment and to hold on to the dignity that a developing country has.Their refusal may also demonstrate that the contours of the North-South divide are changing; while attention focuses on the larger emerging economies, the poorer countries and their interests are getting increasingly marginalized.
-The Amsterdam Law Forum is an open access initiative supported by the VU University Library -