9 December 2021

The annual international climate conferences – usually referred to as COPs – appear to follow a common and by now predictable script: First, there is general acknowledgement of the crisis, hope and expectations. Then comes a bit of drama with an outcome that is generally portrayed as a compromise and – because parties do not walk out on each other – a kind of “happy ending” with, of course, further important work to start immediately. “After the COP is before the COP.”

This was pretty much the same in Glasgow. Despite the effective exclusion of civil society as well as some smaller developing country parties from parts of the conference and bad logistical arrangements for the average participants, the world media generally succumbed to PR narrative managed well by the hosting UK government. At the beginning of the conference the focus was on the climate emergency. Different groups of countries agreed an unprecedented number of new policy instruments and projects – also involving businesses, funders and other non-government stakeholders. This included a declaration on forests and land use, a pledge to reduce methane emissions, the “Glasgow Breakthrough” on green technology, initiatives on agriculture (“AIM 4 Climate”), aviation (International Aviation Climate Ambition Coalition) or access to clean energy (“One Sun One World One Grid” – seriously?) as well as the “Dhaka-Glasgow Declaration” on support for the most vulnerable countries.

Meanwhile in the official inter-governmental negotiations fundamental issues that divide the parties but are key for the success of the Paris Agreement (PA) were either ignored or badly concealed by diplomatic language: Where is the new and predictable finance for climate change adaptation and mitigation in the Global South? If and to what extent does the UNFCCC definition of developed and developing country parties still apply under the PA? When do early industrialized countries accept responsibility for current loss and damage caused by climate change? How can the “global goal on adaption” be relevant in practice? How much longer will fossil fuel companies be allowed to participate in the meetings? Is the ambition in parties’ nationally determined contributions a fair reflection of their capabilities? If some countries cannot be carbon neutral by 2050 who goes carbon negative? And so on and so forth. But despite these substantive differences, after a day of extra time and some nail-biting, ministers from around the globe “hammered” out another deal. Job done, till next time….

Nevertheless, the decisions adopted (or not) in Glasgow – which includes three covering decision by the governing bodies of the UNFCCC, the Kyoto Protocol and the PA termed the “Glasgow Climate Pact” – reflect many of the contentious issues at least “between the lines”. To tackle at least some of them head on could have shown that states are really willing to “do things differently”. Something promised by probably all governments during the global pandemic. For an alternative – but purely fictional – approach in this context see: https://secure.avaaz.org/campaign/en/cop26_peoples_climate_deal_11/?fpla

So – maybe apart from the extreme visibility of sponsors – the climate conference in Glasgow was business as usual. The US returned to the fold and via a string of senior current and former government officials immediately attracted much of the limelight again. The way, however, John Kerry (the presidential climate envoy) laid into China (without calling it by name) for failing to attend the so called “Leaders Summit” and not taking climate change seriously was simply self-righteous and arrogant. Returning to the process with some humbleness could have been another sign (to do things differently). But for a proper assessment of the geopolitical ins and outs of the conference see: https://www.zero.cam.ac.uk/stories/dr-joanna-depledge-reflections-glasgow-cop-26-beyond-headlines

To the extent possible, we stay clear of the political wrangling and focus on providing independent legal assessments. In connection with the Glasgow climate conference we worked on advice related to, for example, the common timeframes (under Art.4.10 of the Paris Agreement), the overlapping mandates of UNFCCC governance bodies, the functions and institutionalization of the Santiago Network on Loss and Damage, the global goal on adaptation (in Art.7.1), compared the different iterations of the draft decision text on Art.6, and analysed the EU’s proposal for a carbon border adjustment mechanism. The requests for assistance came predominately from African delegates (22), 9 from Asia and 2 from Latin America. In addition, we supported 5 civil society organisation and distributed hundreds of guidebooks on the Paris Agreement.

While we do not promote positions, it can be a little frustrating to see how towards the end of a climate conference the proposals of small, particularly climate vulnerable countries are usually watered down or completely disappear in the final versions of the text. All our advice, however, remains available via the LRI data at https://legalresponse.org/legal-assistance/ And for those still wondering whether the negotiations under Article 6 on market approaches had a “happy ending” – read the article by LRI expert David Rossati in Climate Law: https://brill.com/view/journals/clla/11/3-4/article-p298_298.xml

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.”