COP29 - now what?

COP29 produced outcomes of significance to global climate communities. However, given how it operates currently, the actual effectiveness of the COP process and its legal utility is open to question. This is the first in a series of climate law and justice articles from Navraj Singh Ghaleigh, Senior Lecturer in Climate Law at Edinburgh University.

In this, the first of a series of articles on different aspects of climate law for The Journal, I set out key takeaways from the recently concluded COP29. Notwithstanding some headline grabbing conclusions, I argue that the COP has an ever diminishing impact on climate action and to climate law, starting with some contextual considerations.

As with many recent and most likely all future climate negotiations, COP29 took place in the midst of unfolding climate breakdown. The IPCC’s 1.5C warming threshold is on the verge of being breached and what were previously “once-in-a-century” weather events – extreme snowfall in Seoul, flooding in Valencia, drought and fire in the American northeast etc. – are now priced into contemporary life, and death. Woven into this parade of horribles are 2024’s familiar litany of geopolitical, budgetary, and populist crises, placing the UN’s climate negotiations in an exceptionally demanding setting.

Baku has been seen as the most successful COP since Glasgow in 2021, and possibly Paris in 2015. This is damning with faint praise. A feature of recent COPs is their hosting by petro- and/or authoritarian states - Sharm El-Sheikh, Egypt in 2022; Dubai, United Arab Emirates in 2023; Baku, Azerbaijan in 2024. Not only have these Presidencies, as the annual host is styled, had ambiguous relations with decarbonisation, but their attitude to NGOs and civil protest (traditionally the lifeblood of COPs) has been predictably hostile. Concerns around the legitimacy and ambition of the hosts abound, in Baku characterised fossil fuels as “beautiful natural resources…a gift of god.”

The key successes of COP29 related to climate finance and rules for carbon markets. Both are policy-heavy and law-light, with limited legal bindingness. For example, the agreement on the new finance goal of “at least” $300bn a year by 2035 from wealthy nations was forced on a reluctant and dissatisfied plurality of poor nations, amounting to a fifth of their demands. Known in the UN’s snappy language as the “New Collective Quantified Goal on Finance” (NCQG), this takes the form of a ‘Decision’ of the COP, the softest of international soft law’s forms. All previous such commitments on climate finance and much else have been substantially sidestepped by those same parties that negotiated long and hard for them. When the USA withdraws from the Paris Agreement, it is unclear which ‘wealthy nations’ will step into the breach, or even how they will meet their own commitments, budgetarily constrained as they all are. Nonetheless, long negotiations on the NCQG revolved around issues of structure, contributor base, loans versus grants, quantum, duration, thematic focus, and transparency.

Carbon markets

As for carbon markets, it will be recalled that Article 6 of Paris Agreement made oblique reference to carbon markets, treating them as the love-that-dare-not-speak-its-name of the climate world. After nine years, intense negotiations on the ‘Article 6 Rulebook’ concluded with agreement in Baku. At the risk of quickly getting into the long grass, the Rulebook on Article 6.2. filled in details on issues such as revocation of authorisation, registries, reporting, and so on. For Article 6.4. new standards on methodologies and removals, and further guidance on registries, was agreed. The upshot, to its proponents, is that carbon markets can start to mobilise finance and investment to climate mitigation projects around the world. Critics counter that these are failed mechanisms as seen by decades of ‘leaky’ voluntary carbon markets. Resuscitating them as compliance markets will undermine climate ambition and protect fossil assets from phase-out. Nonetheless, for some practitioners with clients engaged in carbon markets, whether UK- or EU-ETS, or concerned with trade and the EU’s Carbon Border Adjustment Mechanism, the new Rulebook will need to be digested and kept under review. Note that on the latter issue the Chinese delegation was highly exercised, moving for dedicated negotiations on the CBAM. This will be only the first of many salvos, with direct relevance for the UK if it opts to shadow the EU’s policy as has been indicated. At the domestic level, it was noteworthy that the UK was the only Parties to make significant new finance pledges (299 million USD for high-integrity forest carbon markets and blended finance for sustainable forestry) and update its action plan (‘nationally determined contribution’ (NDC), in the parlance) to reduce GHG emissions by 81% by 2035 compared to 1990 levels – a highly ambitious target albeit with implementing policies still somewhat vague.

Advisory Opinion

At the time of writing the International Court of Justice opened its hearings on an Advisory Opinion on “the obligations of States in respect of climate change”, at the request of the UN General Assembly. While certain not to effect any significant change, the Court’s ruling will be of interest to all lawyers. Looking forwards, the next COP will be held in Brazil in the Amazonian city of Belém – a carefully made choice after the climatically harmful and illiberal Bolsonaro regime. Forestry will be a likely focus. Although the site may present logistical challenges, the Brazilian Presidency is viewed as highly competent and will be led by an iconic figure in Marina da Silva. Subsequent COPs in Turkey (2026, possibly virtually co-hosted with Australia), and India (2028) may see a reversion to illiberalism. These developments demonstrate that various aspects of international law are engaged on climate change. They fit into a complex legal matrix of mechanisms which in one way or another are concerned with the issue, including the second Trump presidency, the vibrant landscape of UK climate-related caselaw, and legal issues as varied as export finance, greenwash, and ‘climate referendums’. To be discussed….

Written by Navraj Singh Ghaleigh, Senior Lecturer in Climate Law at Edinburgh University

Email: n.ghaleigh@ed.ac.uk

Socials: @lawslashclimate.bsky.social