The Forever Negotiations

A major question coming out of the 2015 Paris conference was whether the Paris Agreement represented a meeting of the minds and would provide a stable framework for international cooperation on climate change going forward, or whether it papered over differences and left crucial issues unresolved.  For twenty-five years, states had engaged in an almost continuous process of negotiations, adopting a multitude of agreements and instruments: the 1992 UN Framework Convention on Climate Change, 1997 Kyoto Protocol, 2001 Marrakesh Accords, 2007 Bali Action Plan, 2009 Copenhagen Accord, and 2010 Cancun Agreements. With the adoption of the Paris Agreement and the Paris Rulebook three years later, had states finally found a formula that allowed them to spend less time negotiating and more time implementing?  

Not surprisingly, the answer thus far has been “no”. The Paris Agreement was a major accomplishment.  But it is still very much a work in progress and its adoption seven years ago has not allowed the UN climate change regime to move onto a more technical, less political track, as the recently concluded climate conference in Sharm el-Sheikh (COP27) further evidenced.    Although the conference was billed by its Egyptian host as the “Implementation COP”, states were still in full negotiating mode.  The headline issue was whether to establish a new fund to address the loss and damage caused by climate change, as vulnerable states demanded. But issues relating to mitigation, adaptation, and finance were also intensely negotiated and the mitigation issues were among the last to be resolved.

What Makes the Climate Negotiations Different from Other Multilateral Environmental Negotiations

Multilateral environmental agreements (MEAs), of course, are supposed to be dynamic, in order to be able to adapt to changing knowledge and circumstances. So they contemplate continuing negotiations.  In other environmental regimes, however, these continuing negotiations mostly concern regulatory matters – which species to protect, which additional chemicals to control, and so forth – rather than the basic architecture of the regime, which is established by the MEA and is relatively stable.   The MEA serves, in essence, as the regime’s constitution and although, from time to time, states may seek to change it, generally their negotiations are pursuant to the system of governance the MEA establishes.

The climate negotiations differ. Even though the Paris Agreement was adopted back in 2015, the Paris negotiation, in a sense, never ceased; in essence, the agreement is still being negotiated seven years later.  In part, this is because the agreement “resolved” certain issues through “constructive ambiguity”, giving parties an opening to argue for interpretations favorable to their positions.  But even when the Paris Agreement is relatively clear – for example, in eliminating the annex-based approach to differentiation of the UNFCCC and the Kyoto Protocol – parties unhappy with the outcome continually seek to reopen it. And, in some cases, the Paris Agreement failed to address issues that some parties see as vital, making further negotiations necessary for these states – most notably, for small island states, financing for loss and damage.  The upshot is that the climate negotiations never have much finality and often revisit the same issues over and over again, giving the process a “Groundhog Day” quality.

COP27

All of these dynamics were on full display at this year’s COP in Sharm el-Sheikh. Originally, COP27 had been slated to be a rather low-key affair, since no important decisions were mandated.  The Paris Agreement had launched a further round of negotiations to develop the detailed rules for how Paris would work, but states had largely wrapped these up at COP24 in 2018, and the remaining bits of the Paris Rulebook were, at least in theory, completed last year in Glasgow.  Glasgow had itself launched two additional processes, one to elaborate the Paris Agreement’s “global goal on adaptation;” the other to discuss financing for loss and damage.  But both of these were two-year processes, so COP27 in Sharm el-Sheikh did not need to take decisions on them.  Instead, it was intended to be waystation between Glasgow and next year’s COP in Dubai – what we used to call a “mini-COP,” in contrast to major COPs, such as COP3, COP7, COP15, COP21, and COP24, which adopted the Kyoto Protocol, Marrakesh Accords, Copenhagen Accord, Paris Agreement, and Paris Rulebook, respectively.  As noted earlier, the Egyptian hosts billed COP27 as the “implementation COP”, reflecting the long-anticipated pivot in the regime from negotiations to implementation.

But given the prominence and urgency of the climate change issue, this was not to be.  No COP is a mini-COP any longer.  All involve major negotiations.  For example, last year in Glasgow,

• Developed countries pressed for stronger language on mitigation in the COP cover decision (the Glasgow Climate Pact), on the ground that the 2020s are the “critical decade,” and they succeeded in including language that: strengthens the regime’s de facto temperature goal from “well-below 2°C” to 1.5° C; requests states to revisit and strengthen their NDCs if they are not already aligned with the Paris Agreement’s temperature goal; calls on states to accelerate efforts towards “the phasedown of unabated coal power” and the “phase-out of inefficient fossil fuel subsidies” (Decision 1/CMA.3, paras. 21, 22, 29, 36).
• African states pressed to elaborate the Paris Agreement’s “global goal on adaptation” (Paris Agreement, art. 7.1).
• And small island states pressed to establish a financing facility for loss and damage.

COP27 was no different.  Small island states – impatient with the two-year Glasgow Dialogue on finance for loss and damage – had already signaled back in June that they would seek a decision at COP27 to establish a loss and damage fund now, rather than wait until next year.  So extremely contentious negotiations were anticipated.  What was a surprise, for most observers, was that the negotiations were successful in reaching agreement to establish a fund, handing small island states a significant victory.

Loss and damage

Together with mitigation and adaptation, “loss and damage” is one of a trilogy of climate change policies.  Mitigation is the preferred option: it seeks to avert loss and damage by reducing net emissions and thereby limiting climate change. Adaptation seeks to minimize the damage caused by whatever climate change cannot be mitigated and is generally seen as the next best option. Finally, “loss and damage” refers to the damages caused by climate change that mitigation and adaptation fail to prevent.  It can be caused either by extreme weather events such as hurricanes and droughts or by slow onset events such as sea-level rise.

The treatment of “loss and damage” as an issue in the UN climate change regime has itself been a “slow onset” event, like a rising tide.  It has been present in the climate change negotiations from the outset, but for many years, vulnerable states made little progress in advancing it.  Significantly, neither the UNFCCC nor the Kyoto Protocol explicitly mention it.  The phrase “loss and damage” was first included in a UNFCCC document in the 2007 Bali Action Plan, albeit in the context of a paragraph on adaptation, rather than as a separate category of climate action (Decision 1/CP.13, para. 1(c)(iii). Since then, it has worked its way into the regime only very slowly, through a series of small steps:

• The first significant breakthrough came at COP19 in 2013, with the establishment of the Warsaw International Mechanism on Loss and Damage (the WIM), although the decision establishing the WIM (Decision 2/CP.19) was ambiguous as to whether “loss and damage” was an aspect of adaptation (as the US insisted) or something different (as small island states argued). (On the one hand, it noted that loss and damage “in some cases involves more than that which can be reduced by adaptation” (id. preambular para. 4); on the other hand, it established the WIM under the Cancun Adaptation Framework (id. para. 1).)
• Next, vulnerable states succeeded in including an article on loss and damage in the Paris Agreement (Article 8), separate from the article on adaptation (Article 7), but the price of US agreement was inclusion of a paragraph in the cover decision that adopted the Paris Agreement specifying that the inclusion of Article 8 did not “involve or provide a basis for any liability or compensation” (Decision 1/CP.21, para. 51).
• Then, at COP25 in Madrid, parties established the Santiago Network for Loss and Damage, to connect potential providers of assistance with each other and with developing countries (Decision 2/CMA.1, paras. 43-45).
• Two years later at COP26, the Glasgow Climate Pact established the Glasgow Dialogue to discuss funding arrangement for activities to “avert, minimize, and address loss and damage” (Decision 1/CMA.3, para. 73).
• Finally, in Sharm el-Sheikh, the efforts of vulnerable states culminated in the COP decision to establish a new fund to assist developing countries in responding to loss and damage, as part of a mosaic of funding arrangements (Decision -/CP27-CMA.4, paras. 2-3).

Given the slow pace at which the loss and damage issue has developed, the decision by COP27 to establish a loss and damage fund was a remarkable achievement for vulnerable states. What accounts for this breakthrough?  Five factors may have contributed:

• First, the devastating floods in Pakistan earlier in the year, attributed by many to climate change, had highlighted the issue of loss and damage.
• Second, developed states, which had generally opposed establishing a loss and damage fund, were on the defensive in Sharm el-Sheikh because of their increased use of fossil fuels resulting from the Russian invasion of Ukraine.
• Third, the decision on financing of loss and damage did not simply establish a fund; it recognized a “mosaic” of approaches to support activities related to loss and damage, including through UN agencies, intergovernmental organizations, and bilateral, multilateral, and international financial institutions – an idea championed by a number of countries, including Maldives and Barbados. Indeed, most of the decision is not about establishing a new fund, but about identifying and addressing gaps in existing funding arrangements and enhancing coherence, coordination, and synergies.
• Fourth, in agreeing to the agenda item that led to the creation of the fund, developed countries insisted on including an understanding that the agenda item not be about liability and compensation.
• Fifth, the decision merely established the new loss and damage fund; it did not commit developed countries to contribute to the fund.

The decision to establish a loss and damage fund does not mean the issue of finance for loss and damage has now been resolved and the parties can move on.  Rather, it initiates a new stream of negotiations about how the fund will work. These will be conducted in a newly-created, 24-member Transitional Committee, tasked with elaborating the “institutional arrangements, modalities, structure, governance and terms of reference for the fund” (Id. para. 5(a)).  Key issues include:

• Sources of funding – Perhaps the most crucial issue is how the new fund will be financed and by whom. Will it rely on contributions by states or be funded at least in part by other sources, such as contributions by non-state actors or innovative sources such as a new tax on emissions from maritime transport? Will contributions be strictly voluntary, or will there be at least an expectation that certain states will contribute and, if so, which ones? In the negotiations leading to the decision to establish the fund, developing countries sought to limit the fund’s donor base to developed countries, while the European Union proposed that the donor base should encompass all major emitters, including developing countries such as China.  The decision does not resolve this issue but leans in the direction of expanding the donor base by (1) “recognizing” the “need for support from a wide variety of sources, including innovative sources”, and (2) tasking the Transitional Committee with “identifying and expanding sources of funding” (Decision -/CP.27-CMA.4, paras. 5(c), 6(e)).
• Basis for providing funds – Closely related to the who question is the why question: What is the basis for providing funding for loss and damage? Is funding in essence charity, or does it reflect historical responsibility for causing climate change? As noted earlier, the US was willing to accept the inclusion of an article on loss and damage in the Paris Agreement only on condition that the article not provide a basis for compensation or liability. At COP27, developed countries insisted on the same condition when agreeing to add the agenda item pursuant to which the decision to establish the loss and damage fund was adopted.  The decision indirectly recalled this condition (Id. preambular para. 8), so presumably the condition applies to the new fund as well, excluding liability as a basis for providing funds, but otherwise leaving the why question open. 
• Recipients – A different who questions concerns which countries should be eligible to receive assistance, all developing countries or only some. Developed states wanted to limit the fund’s recipients to vulnerable countries, and some small island states reportedly agreed in private, not wanting to create a system in which they would have to compete for funds with big developing countries such as Pakistan. The compromise language in the decision provides  that the new finance arrangements (presumably including the fund) are “for assisting developing countries”, but then leans in the direction of vulnerable states by adding, “especially those are particularly vulnerable to the adverse effects of climate change.”
• Purposes of funding – Finally, the decision does not specify what loss and damage funding should be for: planning and preparedness, emergency response, specific losses and damages (for example, lost crops or damaged homes), economic redevelopment? But, in “acknowledging” the need for resources, it adds, “especially in the context of ongoing and ex post (including rehabilitation, recovery and reconstruction) action” (Id. para. 1), suggesting that a broad range of activities should be eligible for funding.

The decision establishing the new loss and damage fund provides that the Transitional Committee will meet three times next year and is to conclude its work and make recommendations to COP28 next fall (Id., Annex para. 1). By the standards of the UN climate change regime, this is an extremely fast timeline, which the Committee seems unlikely to meet, particularly given that its decisions must be made by consensus.  To fully resolve all of the issues raised by the fund, the negotiations will likely extend well into the future.

Other Issues at COP27

Although the loss and damage fund occupied center stage at COP27, it was by no means the only issue subject to intense negotiations. In addition, significant time was spent:

• Negotiating the cover decision – the somewhat misnamed Sharm el-Sheikh Implementation Plan (Decision 1/CMA.4).
• Adopting a new mitigation work programme aimed at increasing ambition.
• Discussing how to elaborate the global goal on adaptation.
• Developing additional guidance on the Article 6 mechanisms – a topic that, in theory, had been wrapped up last year, but in fact still involves many unresolved questions.

The cover decision and mitigation work programme decisions illustrate how politically fraught the climate negotiations remain, the adoption of the Paris Agreement and Paris Rulebook notwithstanding.  In the cover decision negotiations, developed states had to fight tooth-and-nail to avoid walking back what had been agreed just last year in the Glasgow Climate Pact, including the references to 1.5°C as the de facto goal of mitigation efforts.

Even the decision on a new mitigation work programme, which does little more than call for two “global dialogues” each year, was contentious, with some developing countries proposing the inclusion of language aimed at precluding the work programme from being used as a basis to call for greater ambition.  To guard against this possibility, the mitigation work programme decision notes that the work programme will be “non-prescriptive, non-punitive, facilitative, respectful of national sovereignty and national circumstances  and … will not impose new targets or goals” (Decision x/CP.4, para. 2, FCCC/PA/CMA/2022/L.17) – a formulation that would be comical if it did not so clearly encapsulate the continuing dysfunction of the regime.

Concluding observations

It is easy to make fun of climate COPs and the climate negotiations more generally.  The COPs have become circuses, with tens of thousands participants.  Few of the attendees follow, much less participate in, the negotiations.  Most attend for other reasons: to hold demonstrations, present their research, network with others, make the scene. Meanwhile, the inter-governmental negotiations have developed a kabuki-like quality.  States reiterate their positions endlessly, acronyms proliferate so that the process is comprehensible only to the “COPnescenti”, and the same mantras are endlessly repeated: that the COP is a “party-driven process”, that “nothing is decided until everything is decided,” and so forth. No one takes the official ending time of Friday afternoon seriously any longer, since now every COP, no matter how inconsequential, runs overtime – the only question is by how long.  (Some delegations and observers establish betting pools on when the final gavel will fall.) For first-time COPers, attendance is a rite of passage, an initiation into a strange cult.

But for all its limitations, the Paris Agreement still represents the best that can be agreed internationally. Although it falls short of putting the world on a pathway to limit climate change to less than 1.5°C, the pledges parties have made (in their NDCs, mid-century net-zero goals, and side announcements) would reduce temperature increase by more than a degree if fully implemented, from the 3.5-4° C projected pre-Paris to about 2.4° C today.  That is a considerable achievement. While strengthening the agreement would be desirable, the more immediate challenge is to prevent backsliding from what has already been agreed, as COP27 illustrated.

In this context, the conversion of every COP into a mega-COP is both a curse and a blessing. On the one hand, mega-COPs suck up a tremendous amount of time and energy, and create unrealistic expectations that states will achieve a major breakthrough each year, which then feeds into disillusionment with the process when states, predictably, fail to do so.  On the other hand, mega-COPs keep public attention focused on the climate change issue and serve as a motivator – and a platform – for additional commitments by states and other actors. Last year in Glasgow, for example, groups of states announced the Global Methane Pledge  and the Just Energy Transition Partnership (JETP) with South Africa.  This year, while COP28 was underway, a group of developed states announced a new JETP with Indonesia, involving the provision of $20 billion to help phase-out coal.  In assessing what COPs achieve, these “side” announcements are often more consequential than the formal outputs.

Calls to hold COPs less frequently or to reduce their scale are understandable.  But it is important to recognize that COPs, though frustrating, serve useful functions, and that downgrading them could make the international climate change regime less rather than more effective.  In any event, mega-COPs and “forever negotiations” are not the contingent product of benighted negotiators and recalcitrant states, which could be readily changed; they reflect the salience, urgency, and political complexity of the climate change issue.  For better or worse, they are here to stay.