Adam D. Orford, Assistant Professor of Law at the University of Georgia School of Law, will be attending the 29th Conference of Parties to the United Nations Framework Convention on Climate Change as one of the American Bar Association’s observer delegation and will be sharing his thoughts on the experience here. The views expressed in this post are solely his and do not necessarily reflect the views or positions of the ABA or UGA.
Cross-posted on Medium.
Greetings! Over the next month I’ll be sharing my thoughts on my experiences participating at COP29. In this first post I will cover several preliminaries, including what COP29 is, the controversial selection of Azerbaijan as the host country, the preliminary agenda for the conference, and the ABA’s mission there. Future posts will dig more deeply into the many issues under discussion at COP29.
What Is COP29?
COP29 is an international climate treaty negotiation. The United Nations Framework Convention on Climate Change (UNFCCC) has been ratified by 198 parties, including the United States. This 1992 treaty sets out the commitments and obligations of its signatories to respond to climate change. Like several other major multilateral environmental treaties (.g., the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer), the UNFCCC’s operative provisions are developed through subsidiary protocols, agreements, and decisions negotiated at regular Conferences of the Parties (COPs).
This year marks the 29th UNFCCC COP (i.e., COP29). The same meeting will also be the 19th conference serving as a meeting of the parties to the Kyoto Protocol (CMP19), and the 6th conference serving as a meeting of the parties to the Paris Agreement (CMA6), both of which are implementing agreements under the UNFCCC.
The COPs are, at their heart, negotiations over the details of the parties’ obligations and commitments under the UNFCCC, Kyoto Protocol, and Paris Agreement. However, the COPs also allow participation by registered “observer” organizations, and over the years the COPs have seen increasing attendance by business and civil society organizations, often with many thousands of individuals joining to observe and to advocate and raise awareness for the many interests and issues implicated by worldwide climate response efforts. The COPs are, in other words, the world’s largest and most important international climate law events. This year’s COP29 will be no different.
The conference will be hosted in Baku, Azerbaijan, and its official website is here.
Why Baku?
The selection of Baku, the capital of Azerbaijan, to host COP29 has been particularly controversial and it is worthwhile to begin by discussing that controversy.
To ensure worldwide representation, the COP host country rotates each year between five UN regional groups, shown in the map here. COP28 was hosted in the United Arab Emirates, part of the Asia-Pacific Group; COP29 will be hosted in Azerbaijan, part of the Eastern European Group, which includes Eastern Europe, the Caucuses, and Russia; and COP30 will be hosted in Brazil, part of the Latin American and Caribbean Group; and so on.
Typically, it falls to the member states of the hosting regional group to decide among themselves upon a host country venue. To reach a decision, interested nations submit bids and the hosting regional group’s members then must attempt to achieve consensus among themselves to select one of the bidders for approval by the full treaty membership.
For COP29, two European Union nations — Bulgaria and the Czech Republic — each submitted early bids to host. But each was quickly blocked by Russia, whose opposition stemmed from its disagreements with the EU over the ongoing war in Ukraine. Eventually, both Armenia and Azerbaijan also submitted bids. But, given that the two countries have been in armed conflict with each other intermittently for decades over the Nagorno-Karabakh region, both also indicated they would block the other’s bid.
The matter was eventually resolved politically, as Bulgaria and the Czech Republic both voluntarily withdrew their bids, and Armenia agreed to support Azerbaijan’s bid as part of a normalization pact that also included a small prisoner exchange. With time running out to approve the selection, and with consensus achieved among the nations of the regional group, the Azerbaijani proposal to host was accepted by the UNFCCC plenary in late 2023.
Observers and some parties to the conference have criticized this outcome on two primary grounds: Azerbaijan’s heavy dependence on fossil fuel production, and Azerbaijan’s human rights record.
Regarding the former, although Azerbaijan is not one of the world’s very largest oil and gas producers, it derives approximately 50% of its GDP from its oil and gas industries, and fossil fuels account for over 90% of the nation’s exports. Its economy and government therefore are heavily dependent on oil and gas revenues, raising conflict of interest concerns when phasing out fossil fuel use is almost certainly necessary to solve climate change.
However, this is not a new issue. Although participation by oil producing countries is essential to the success of international climate negotiations, the rising influence of oil and gas lobbyist observers at the COPs, combined with the strong influence that conference host countries exert in setting conference agendas, has increasingly led to warnings of the potential for COP greenwashing. This was especially the case last year in Dubai, as the UAE is the world’s eighth largest oil producer.
On the other hand, past conferences in oil-producing countries have produced positive results, and the impact of a host country’s oil production or oil dependence on the outcomes and conduct of the various COPs is not clearly established. Perhaps the most important aspect of this debate is to highlight the tension at the heart of international climate law negotiations: climate is considered a “super wicked” problem in part because those who are contributing most to the problem must also take the lead in solving it.
The situation over Azerbaijan’s human rights record is more challenging. The UN Committee against Torture, which monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, recently expressed “alarm” over Azerbaijan’s “alleged extra-judicial killings, torture, and ill-treatment of national and ethnic Armenians during armed conflict” in Nagorno-Karabakh. It further voiced “concern” over “allegations that human rights defenders and journalists continue to face physical and judicial harassment, and in some cases, are subjected to torture and ill-treatment in Azerbaijan.”
Azerbaijan has, in fact, faced allegations of genocide and ethnic cleansing following its blockade and military action against the de jure Azerbaijani, ethnic-Armenian breakaway Republic of Artsakh in 2023, which resulted in the flight of almost the entire population of the Nagorno-Karabakh region to Armenia.
With respect to the COP itself, some civil society groups, including most prominently Human Rights Watch, have also questioned whether Azerbaijan has sufficiently committed to protecting the rights of civil society participants in Baku during the conference, and have called for clarity prior to participating. A recent letter from a group of U.S. Congress members urged the U.S. State Department to pressure Azerbaijan on these issues and to support Armenian energy independence, triggering a harsh response from Baku.
These realities pose difficult questions for participants at COP29. The enormous importance of climate change and the essential role of observer organizations in the COP process militate strongly for participation, and Armenia’s accession to Azerbaijan’s host bid should hold some weight. But while all parties to the UNFCCC did agree to Azerbaijan‘s selection, no one would mistake this for any nation’s, or participant’s, endorsement of Azerbaijan’s human rights record. Rather, the situation again highlights the geopolitical tensions and compromises inherent in the host selection process for one of the most high-profile UN conferences to be held this year. There are no satisfactory answers — other than that Azerbaijan’s participation provides an opportunity to raise the salience of these issues on the world stage.
What Is on the COP29 Agenda?
Agenda-setting at the COP is influenced both by the host country, which typically holds the conference presidency, and by the technical issues built into the treaty itself. This year, the conference president is Mukhtar Babayev, Azerbaijan’s Minister of Ecology and Natural Resources, and formerly the environmental director for Azerbaijan’s state oil company, SOCAR.
COP Presidency Priorities
Babayev has communicated his goals for COP29 in letters to the parties and constituencies, and other public statements leading up to the COP. Although deeply steeped in UNFCCC jargon, the goals revealed in the statements are relatively straightforward: to promote increased national commitments to reducing their greenhouse gas emissions, and to promote financial commitments to achieve those reductions.
These two goals do not move far beyond the Paris Agreement itself. Under the Paris framework, national reductions ambitions are indicated through documents titled “Nationally Determined Contributions” (NDCs). And, following a process last year called the “Global Stocktake,” it is clear that commitments made in current NDCs are insufficient to achieve the Paris Agreement goal of maintaining global average surface temperatures at or below 1.5 degrees Celsius above pre-industrial baselines by 2100.
Thus, Azerbaijan is calling on nations to develop and submit “1.5-aligned” NDCs, and has committed to doing so itself at COP29. On the finance side, the main goal is to set a so-called “New Collective Quantified Goal on Climate Finance” (NCQG), an obligation under the Paris Agreement requiring an extension and expansion of the (perennially unmet) commitment for industrialized nations to provide $100 billion per year in finance for climate mitigation activities.
Indeed, given that 2024 is set by the treaty as the date to develop the NCQG, COP29 has already been called the “finance COP.” Related presidential initiatives on finance are contained in a 20-page “Action Agenda” issued by the COP President’s office in September. These initiatives include a climate action fund funded by fossil fuel producing nations and companies, an initiative to “to focus on the nexus of climate finance, investment and trade,” a proposal for the development of national “green energy zones” to facilitate clean energy construction, a pledge to increase battery storage on the world’s electric grids, an effort to promote and expand green hydrogen production, and many others.
Treaty Issues and Side-Agreements
Major outcomes from the COPs have included both treaty negotiations progress and side-agreements, statements, initiatives, and pledges developed by the participants. In Glasgow in 2021, for example, there were major commitments by financial institutions to begin confronting their own role in climate change through their fossil fuel infrastructure finance activities, leading to much public discussion of investment firm climate commitments in the years since. And COP28 in Dubai last year produced important new commitments related to global methane emissions. While such pledges are only the first step in the much more difficult process of implementing change, they are often the most encouraging outcomes of the COP process, even as the treaty work makes more incremental progress.
With respect to the treaty itself, Azerbaijan’s role is to facilitate party negotiation on the many treaty details under discussion. A useful place to start for understanding both the major issues and the ins and outs of the negotiation processes is Carbon Brief’s excellent review of the key outcomes of COP28 in Dubai. Although the issues at COP29 will be different, many of the larger issue categories will be the same this year. I’ll tackle these in more detail in the future, but going into COP29 some of the most important issues on the table include:
- Development of the NCQG. In 2009, UNFCCC parties agreed to develop a program for developed countries to provide $100 billion per year in climate finance for developing nations. Although the goal was never actually achieved, Paris Agreement Article 9 officially committed to it in theory, requiring developed countries to “provide financial resources to assist developing country Parties” to reduce their greenhouse gas emissions and adapt to climate change. The parties have since agreed to develop a new, increased finance goal by 2025, meaning that this negotiation must be completed at COP29. Widely varying estimates place the need for such finance at up to $500 billion to $1 trillion per year, but the financial impact of such commitments has not been one that developed nations have been particularly eager to bear. Therefore, negotiations over both the amount of the new goal, and the mechanisms by which the goal will be met, will be closely watched at COP29.
- Loss and damage funding. One of the most controversial components of the UNFCCC framework is “loss and damage,” referring to the harms suffered by vulnerable nations from the impacts of climate change, and the financial commitments of industrialized nations to support adaptation to and recovery from these harms. While not mentioned in the UNFCCC itself, the concept was first formally incorporated into the UNFCCC process by the Bali Action Plan in 2007, and later extended by the Warsaw International Mechanism for Loss and Damage in 2013. Loss and damage is specifically discussed in Paris Agreement Article 8, and a major breakthrough at COP27 involved the creation of an international fund for loss and damage. Incremental progress has been made at recent COPs and, given the focus on finance at COP29, it is likely that increased commitments to support the loss and damage fund will be proposed and negotiated at COP29.
- Article 6 Carbon Markets. Another extremely controversial (and extremely technical) element of COP29 will be the continued negotiations on implementation of Paris Agreement Article 6, which agrees, in theory, to the creation of an international carbon market to allow countries to take credit for carbon offset projects and initiatives undertaken in other countries. Carbon credit and offset programs have had mixed results historically, and the Article 6 mechanism is not universally supported by the parties, making progress on the details of the international program slow and challenging. The last several COPs have resulted in incremental progress toward defining the program, but major questions have repeatedly failed to reach agreement and will continue to be discussed at COP29. Going into the conference itself, many important matters are still unresolved, an indicator that outcomes may again be limited. But should negotiators achieve a major breakthrough on operationalizing the Article 6 system, this would be one of the more significant outcomes at COP29.
- NDC Updates. National emissions reductions commitments are the primary mechanism under the Paris Agreement for actually solving climate change. Although not technically required to be submitted until February 2025, COP29 will provide a platform for national presentations of their forthcoming emissions reduction plans. Again, Azerbaijan has promoted the creation of “1.5-aligned” NDCs, and it is likely that many major nations will provide new information about how far they are willing to go — or publicly commit to going — to draw down their emissions along science-based timelines. The NDC statements from the United States and China will be especially closely watched, particularly as COP29 will be held immediately after a U.S. election that will have major impact on the U.S.’s likely future climate and energy policy.
- Adaptation Plan Commitments. Finally, and with climate change impacts increasingly a present reality worldwide, a recent development in the UNFCCC process has seen nations committed to developing National Adaptation Plans focused on limiting the negative effects of climate change, with particular attention to protection of the most vulnerable people in their societies. As is often the case with climate adaptation, outcome measurement is difficult in this area and in addition to promoting the completion of these plans, there will be discussion around the development of measurable metrics for assessing progress under these plans at COP29.
Currently, the UNFCCC parties are finalizing their negotiating positions on these and many other issues under debate. Whether COP29 is considered a success or not will depend, in large part, on whether and what progress is made on these and many other issues.
What Is the ABA’s Role?
2024 will mark the fourth year that the American Bar Association, under the leadership of its Section of Environment, Energy and Resources (SEER), has participated in a UNFCCC COP as an observer organization. While not directly involved in negotiations or issue advocacy, the ABA will be working both to observe and report on the events at COP29, and to encourage collaboration with other national bar associations on the special challenges that climate change poses to the legal profession. In the ABA’s words:
As an official observer to the United Nations Climate Change Conferences … the ABA participates in numerous programs to educate lawyers about their roles in getting to net zero. These programs are coordinated collaboratively by the ABA Section of Environment, Energy, and Resources’ (SEER) Climate Change Task Force with other bar associations, including the International Bar Association (IBA), the Brazilian Bar Association (OAB), the Law Society of England and Wales (LSEW), and many other bar organizations from around the globe.
The ABA’s COP observation program was developed under the leadership of the ABA Section on Environment, Energy, and Resources (SEER) Climate Task Force, which has promoted awareness and recognition of climate change at the ABA.
This work began with the development and eventual passage of an updated and strengthened ABA Resolution on Climate Change in 2019. Through that resolution, the ABA “urge[d] federal, state, local, territorial, and tribal governments, and the private sector, to recognize their obligation to address climate change and take action” to “[r]educe U.S. greenhouse gas emissions to net zero or below as soon as possible, consistent with the latest peer-reviewed science,” and to “[c]ontribute the U.S. fair share to holding the increase in the global average temperature to the lowest possible increase above pre-industrial levels.”
The ABA Resolution also urged Congress to enact legislation to achieve these goals, promoted climate adaptation efforts and “a just transition for the people and places most dependent on the carbon economy,” urged the United States to remain engaged with the UNFCCC and Paris Agreement, and “urge[d] lawyers to engage in pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change, and to advise their clients of the risks and opportunities that climate change provides.”
The ABA Climate Task Force’s next initiative was to organize ABA attendance at the COPs, which began in 2021. The ABA has previously sent delegations to COP26 in Glasgow, UK, COP27 in Sharm-el-Sheik, Egypt, and COP28 in Dubai, UAE. The focus of these delegations has been to work with other national bar associations to educate the profession, and other disciplines, about the critical role that lawyers and law associations play in incorporating climate-conscious provisions into contracts and generally advising their clients on the risks and opportunities presented by climate change. Among other things, this group of law associations has developed a Climate Registry that is posted on the International Bar Association’s website, providing ready tools to other lawyers and law associations for adopting climate resolutions and other guidance to address climate change.
In addition to myself, this year’s ABA delegates are Uma Outka, Professor of Law at the University of Kansas School of Law, and Kamran Jamil, associate at Morrison Foerster and Vice Chair of the ABA’s International Law Committee, Young Lawyers Division.
What’s Next?
Hopefully, the above has provided some insight into the COP process and COP29’s goals. As always, the devil is in the details and therefore future posts will dig more deeply into some of the substantive issues to be discussed.
In the next post, I’ll examine the Paris Agreement NDC framework and the results of the first “global stocktake” conducted earlier this year, and more closely examine the climate finance issues to be covered at the COP.
I’ll continue sharing more about my observations during the conference as it develops. COP29 begins on Monday, November 11, and runs for two weeks.
