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Copenhagen’s final stand: A lawyer’s predictions

Copenhagen’s final stand: A lawyer’s predictions

The heads of state of 115 countries will join the UN climate change talks on Friday, but significant political progress still looks precarious. Deacons partner Elisa de Wit shares her…

The heads of state of 115 countries will join the UN climate change talks on Friday, but significant political progress still looks precarious. Deacons partner Elisa de Wit shares her predictions on what, if any, binding agreements can be made before the world's leaders leave Copenhagen.

The statement "Nothing will be agreed until everything else is agreed" placed on the front of the latest negotiating text for the amendments to the Kyoto Protocol nicely sums up the general flavour of the climate change talks taking place in Copenhagen. It is fair to say that progress on reaching agreed outcomes has been extremely slow and leads one to wonder how it will be possible to reach an agreement given the deadlocks that still exist after two years of negotiations.

Given that 10 minutes can be spent discussing whether to use the word "cited" or "quoted" to reference a document within the text, it is perhaps hardly surprising that we are unlikely to see a legally binding treaty as the outcome from the talks.

It was clear that the President of the Convention of the Parties, Danish Connie Hedegaard, is mindful of the progress that still needs to be made, when in her formal opening remarks on Tuesday she stated that: "the key word for the next two days must be compromise". And as Yvo de Boer, Executive Secretary of the UNFCCC, stated following her: "there has been some progress, but not nearly enough to present to the world as a success in Copenhagen. And we have almost run out of time."

So will the arrival of more than 115 heads of state in Copenhagen on Friday be enough to facilitate real progress? Will they be able to produce a politically binding agreement which can then be turned, without too much delay, into a legally binding agreement? Having spent the last week attending numerous side events, as well as the negotiations themselves, it is evident that a number of different community sectors, not least the business community, are calling for this outcome.

This consensus is consistent with the survey that Norton Rose undertook in the lead up to Copenhagen, in which 79 per cent of respondents concluded that an unsuccessful outcome at Copenhagen would have a detrimental impact on business. It is increasingly apparent that the scale of transformation needed to meet whatever emissions reduction targets may ultimately be agreed at Copenhagen (or beyond) and move towards a low-carbon future cannot be achieved without significant private sector investment.

On some estimates, as much as 85 per cent of the required funds will need to come from private sector finance. However, the consistent message from businesses is that they need a certain regulatory and policy framework in place to deliver that level of investment.

So, will Copenhagen provide this? There are some outcomes that look promising. For instance, good progress has been made on the principles for a mechanism to reduce emissions from deforestation and forest degradation (REDD) and it appears that an agreement has been reached on technology transfer based on the idea of shared research centres. Less certainty seems likely to be offered in respect of new market mechanisms, such as sectoral crediting and trading.

The jury is still out on the approach that will be taken to aviation and shipping fuels and, of course, the big issues still up in the air are the "numbers" (the shared vision is a long-term target and applies to developed and developing countries) and the level and timing of funding that will be made available by developed countries to assist developing countries with both mitigation and adaptation.

So, it remains to be seen whether the political leaders can achieve what the negotiators have so far failed to do and agree "everything else".

Elisa de Wit is a partner at law firm Deacons and the leader of the firm's Australian climate change practice. Elisa joined a team from Norton Rose, an international firm with which Deacons will merge on January 1, advising clients on the negotiations as well publishing a blog and updates via Twitter.

See the Norton Rose climate change blog

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