The Copenhagen Accord and the Silent Incorporation of the Polluter Pays Principle in International Climate Law : An Analysis of Sino-American Diplomacy at Copenhagen and Beyond

Despite two years of aggressive diplomacy, the December 2009 Copenhagen Conference failed to create an internationally binding treaty to abate global warming. The negotiations resulted only in an aspirational, three-page interim agreement. While its brevity and clear retreat from the legal obligations of the Kyoto Protocol are disappointing, the Copenhagen Accord is nonetheless significant in many regards. It sets a goal of limiting global temperature rise to 2 degrees Celsius, contains an obligation for hundreds of billions of dollars to flow from developed states to the developing world, and establishes a new mechanism to prevent deforestation. The most significant result of the Conference, however, is the codification of responsibilities for developing nations – including China and India – to address global warming for the first time. This represents a fundamental shift in the balance between the environmental law maxims of “common but differentiated responsibilities” (paramount in the Kyoto Protocol order) and the “polluter pays” principle, now silently incorporated. As a result, post-Copenhagen climate diplomacy may undergo a significant realignment. Whereas the international community arrived divided along North-South lines, many nations left Copenhagen frustrated by the relatively inflexible attitudes of the world’s two largest greenhouse gas emitters: the United States and China. Both nations managed to preserve their bottom lines at Copenhagen, but subsequent negotiating rounds will feature more power struggles regarding the global governance of climate change. This article is intended to provide a detailed summary and analysis of the Copenhagen Conference and its fundamental document, the Copenhagen Accord. The legal and diplomatic implications of both are parsed, with special focus upon the two nations rightfully receiving the most attention, acclaim and blame for anthropomorphic climate change.