9 November 2021

There is a team of LRI lawyers in Glasgow that provide hands-on legal support to delegates from poor and climate vulnerable developing countries. While the media focus on big political announcements and the various celebrities that visit the conference, climate negotiators are more concerned with the unresolved technical issues for implementing the Paris Agreement.

Delegates have, for example, asked us to compare different iterations on the draft decision text on carbon markets, about the EU Commission’s proposal for a carbon border adjustment mechanism, the best fit of common timeframes for NDCs into the wider reporting framework of the Paris Agreement, how the governing bodies of the Convention, the Kyoto Protocol and the Paris Agreement (COP, CMP and CMA) relate to each other or for suggestions on the “operationalization” of the global goal on adaptation.

The LRI volunteers during the first week of the conference were Caroline Mair, a lawyer (solicitor) from Trinidad & Tobago, and Korey Silverman-Roati, the current Climate Law Fellow at the Sabin Center at Columbia University. In the second week the volunteers are: Sarah Hill-Smith, at trainee at Clyde & Co, Daniela Morich a French qualified lawyer with a government and commercial law practice background and Jule Schnakenberg, a law student at Aberdeen university and member of the World Youth Climate Justice Team.

They talk to negotiators and forward their legal questions (if any) to our experts from universities, law firms and barrister chambers. In addition, they have helped us to distribute over 500 copies of our guidebook on the Paris Agreement at the conference. The content of the guide is also available as an App that has now been downloaded to 75 Android and over a hundred Apple phones.

25 October 2021

Ahead of the UN climate conference in Glasgow, LRI is holding a four day training course for lawyers on delegations of developing country parties and civil society observer organisations.

The training, taking place in central London from 25-28 October, represents a combined effort by the legal community in the UK to strengthen the capacity of lawyers in the Global South to shape the national responses to climate change. Course topics, such as public international law, Paris Agreement, legislative drafting, carbon markets, climate risk insurance or human rights, are taught by experts from academia, government, NGOs and the private sector.

Participants are from Nigeria, Uganda, Burkina Faso, South Africa, Papua New Guinea and Australia. The course, therefore, provides a forum to exchange experiences, ideas, and good practices in different jurisdictions. As a result, participants will be better equipped to review and develop domestic legal frameworks for the implementation of the Paris Agreement, good governance and the rule of law. Strengthening their climate diplomacy skills, will also help to create a more level playing field between actors in the climate change negotiations. Unfortunately, two lawyers did not get their UK visas for the COP in time to travel to London.

7 October 2021

In the lead-up to the climate conference in Glasgow, LRI has published two new briefing papers. Authored by two lawyers – one from the Global South, the other from the Global North, both with long-standing experience in the international climate negotiations – the papers address two issues that are of particularly important for the future implementation and the success of the Paris Agreement: compliance and the treaty’s goal on finance flows.

“Strengthening the compliance system for Nationally Determined Contributions” assesses the strengths and weaknesses of the current architecture of the oversight mechanisms of the Paris Agreement (under Articles 13 to 15). The Paris Agreement is primarily based on voluntary actions and good faith, but the flexible ‘bottom-up’ approach may not assure the necessary compliance to achieve lasting change. The paper suggests multiple ways to strengthen compliance domestically, within the Paris Agreement itself, and beyond to ensure that parties meet their emission mitigation targets.

The second briefing paper, “The Paris Agreement goal on finance flows”, addresses one of the three goals in Article 2 of the Paris Agreement. In addition to meeting the temperature goal and enhancing adaptive capacities, the treaty also aims to strengthen the global response to the threat of climate by “making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development” (Article 2.1.c).

The paper provides a comprehensive analysis of where and how finance flows are currently taken into account under the Paris Agreement, such as parties’ NDCs or Article 9.5. It identifies existing gaps, technical options to further develop the Article 2.1.c goal and highlights a range of national and transnational initiatives that should inform future decisions by the parties to the Paris Agreement.

13 July 2021

The 52^nd sessions of the UNFCCC subsidiary bodies met over the period 31 May to 17 June 2021. This was the first meeting since COP25 in December 2019 and, in the light of the covid-19 travelling restrictions, it was held in a virtual format. This was unchartered territory for negotiators, even the most seasoned amongst them, and also for us. Fortunately we were able to tap into our broad international network of volunteers. Over the three week period, six of them – Daniela Morich, Jule Schnakenberg, Sarah Hill-Smith, Caroline Medeiros Rocha, Maria Eduarda Mury and Carly Yu – took it in turn to follow meetings and take notes from their base in Brazil, Singapore, continental Europe or London.

We share below some of their reflections on their experience.

On the SB meeting generally, Sarah thought that “ The scale and importance of the conversations taking place was tangible … The meetings had hundreds of attendants and it was fascinating to hear the perspectives of different states and affiliations on various elements of climate change. I learnt a lot.”

On the virtual nature of the conference, Daniela commented that “this was the first “digital diplomacy” event I ever attended … the late night and early morning sessions were a bit of a challenge and the repetitive exchanges of “Can you hear me?” or “Please mute your microphone” a constant reminder that even diplomacy was adapting to the new normal. Nonetheless, I found it encouraging and inspiring that diplomacy had not stopped, and negotiators showed their willingness to adjust the way they work during the pandemic to make constructive progress on crucial topics … [but the] virtual setting has deprived delegates of in-person interactions and the rich, human context that usually accompanies multilateral conferences.”

Caroline founds that “Some of the delegates had more trouble than others, when it came to technological support. However, the meetings were very inclusive, since it opened the possibility of a broader participatory body of people.”

Jule, who describes herself as a young climate optimist, found it “reassuring to hear countries pressing for progress on important agenda items. Simultaneously it is shocking to witness first-hand the glacial pace of negotiations on more controversial topics, such as (you guessed it) Article 6 and climate finance more generally … The schedule some delegates must have been following, considering that internal coordination meetings would sometimes have to happen between 3-4am, raises what exhausting negotiation sessions meant to a new dimension.”

The main takeways for Carly were that “there was a clear divide in terms of alliances between developing and developed countries … half the time, the two sides were simply speaking past each other and not dealing with the most difficult conflicts presented; a lot of the time was focused on the nitty-gritty elements of the text … all sides seemed more concerned about the language of the text than the substance; and all sides were reluctant to discuss the logistics of putting plans into action despite verbally stressing the importance of strategizing beyond paper… Things like how a developing country might finance a project, or how a partnership project will be structured, etc. were delayed to future sessions.”

7 June 2021

A slightly shorter version of this commentary was initially published on 27 May through the Climate Law Blog of the Sabin Centre for Climate Change Law at http://blogs.law.columbia.edu/climatechange/2021/05/27/should-countries-issue-binding-unilateral-declarations-on-ghg-emission-targets/

In 1978, during a phase of the Cold War when relationships between East and West began to relax, the United States and 4 other nuclear powers (China, France, the Soviet Union and the UK) made unilateral declarations granting security assurances to non-nuclear- weapon states. Speaking on behalf of the US president, the US Secretary of State at the time, Cyrus Vance, said:

“The United States will not use nuclear weapons against any non-nuclear–weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons or any comparable internationally binding commitment not to acquire nuclear explosive devices, except in the case of an attack on the United States, its territories or armed forces, or its allies…”

In the Nuclear Test case (Australia v. France), the International Court of Justice (ICJ) recognized the legally binding nature of such a unilateral declaration under international law, where the statement clearly indicates an intention for that state to be bound. The International Law Commission’s Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations provide further general guidance on when such a statement by a state or government official can be considered legally binding.

The adverse effects of climate change are of course very different from the impact of a nuclear strike. It is, however, increasingly recognized that the planet is in a state of emergency – that human rights, biodiversity and the territorial integrity of many states are already affected or directly threatened. To avoid a “climate break down” the international community has to close the gap between countries’ collective emission reduction targets and the Paris Agreement’s goal to limit global warming to between 1.5 and “well below” 2°C.

The upcoming UN climate conference in Glasgow in November 2021 may be the last opportunity for parties to sufficiently up the mitigation targets contained in the Nationally Determined Contributions (NDCs) to meet this challenge. But while the Paris Agreement is formally a legally binding international treaty, it is generally recognized that (similar to many other multilateral environmental agreements) it only creates procedural obligations: to submit and maintain an NDC and subsequently report on performance. There is no obligation to actually meet a mitigation target.

Making emission reduction commitments part of a unilateral declaration would add a new element of substantive legal bindingness and also strengthen the robustness of states’ individual and collective efforts in responding to climate change. Those who argue that it is precisely the voluntary nature and flexibility of commitments under the Paris Agreement that encourages parties to make increasingly ambitious nationally determined contributions are of course likely to disagree with this assessment.

To make national mitigation targets legally binding some countries are integrating their pledges at the international level into domestic law. The European Union (EU) – one of the proponents of a more binding approach in the negotiations leading up to the Paris Agreement – has internal legislation that requires its member states to meet agreed contributions to an overall EU target. Germany has enshrined a 55 per cent greenhouse gas reduction target by 2030 in relation to 1990 levels in binding federal legislation (the “Klimaschutzgesetz”), and the UK has included the target to achieve net-zero carbon emissions by 2050 (100% relative to 1990 levels) in the 2008 Climate Act. Other countries that have or are planning to capture their mitigation goals in legislation include Canada, Chile, Japan and Mexico.

While a unilateral declaration may create additional peer pressure and accountability (in relation to other states but also domestic civil society) it does not guarantee subsequent compliance and the successful implementation of pledges. So maybe the most significant impact such declarations would have at this point in time is to show goodwill and rekindle trust between parties to the climate negotiations. If one party starts, it will be difficult for others not to follow and join a new path based on international solidarity and cooperation that has been invoked innumerable times during the Covid pandemic.