Abbe Brown, Professor in Intellectual Property Law at the University of Aberdeen, is a member of our COP26 and Climate Change Working Group and Technology Committee. In her blog, Abbe writes about her experience as a delegate at COP26 in Glasgow in November 2021..
I was honoured to attend COP26 in week two as part of the University of Aberdeen delegation. My main area of teaching is intellectual property (IP) and the appropriateness of its balances and limits in the rights. My research builds on this, exploring the intersection or lack of it, between IP and other legal fields in addressing key societal challenges; and in recent years, I have focussed on climate change and the ocean, both in scholarship and in public engagement – so COP26 was an exciting opportunity.
This all builds on my 10 years in professional practice in London, Melbourne and Edinburgh and I have been honoured to be a member of the Society's working group. In the months leading up to COP26, we worked with the legal profession, including at the 2020 Technology Conference and the Society Conference in 2021 to explore their thoughts on how they could and should work with clients in exploring new approaches to climate change and how this sits alongside professional responsibilities. The 2021 LawScot COP26 Conference, just before COP26, had an inspiring set of speakers, notably Mary Robinson.
Being at COP26
A few weeks on from COP26, the flurry of activity and people, lack of fresh air, double masking, security, art, selfies, media, protests, daily LFTs, passing world leaders and celebrities (very few with an entourage), working out where to get a seat to view events online if one could not get in physically behind the door, and queues queues queues, has started to fade as life returned to “normal”. But with that came the fear that the learnings and resolves, as well as the frustrations, might also start to fade. Time, then, to reflect.
Attending COP26 in my home city was exciting and unforgettable. Even the frustrating bits were worth it: one can be very informed about the negotiation of previous international treaties relevant to IP, information, technology and climate change (such as TRIPS, the Copenhagen Accord and the Paris Agreement); the questions about the size and scope of the delegations and advisers of some countries; the extent to which NGOs are able to observe and inform negotiations; the links between side events (as in outside the main plenary we see reported), protests and negotiations in the immediate, shorter and longer term; and the power imbalances between countries and the impact of this.
It is another thing to be refused entry to events, to be deluged by the number of events and struggling to work out which events there were, wondering if there would be a space because of COVID restrictions, and seeing colleagues understandably taken aback by all this. The political economy of IP and climate change (and of international negotiations in general, was suddenly very real.
As hours passed at COP26, I gathered my bearings. I adopted the technique for several days of having no particular plan – all events provided invaluable insights, new perspectives and challenges: be they more external side events online such through Scotland’s Climate Ambition Zone , the Green pavilion which was by week two open to all (two highlights were a disability event and the Living Wall), the Blue Zone (open only to COP26 delegations), the online Ocean Pavilion and the Presidency and other official events.
I found the Earth Negotiations Bulletins invaluable each day, as well as social and legacy media, in trying to assimilate what else had happened. I tweeted my own reactions each daily, including some photos @IGFTowardAccess (#COP26 #TogetherforOurPlanet #UniABDNCop26).
A holistic approach to change
Two overall messages were the need for adaptation finance (alongside arguments that one should look beyond money) and addressing loss and damage which is already occurring - strong messages from big ocean/small island states were very compelling. I have continued to reflect on events led by NGOs challenging present fossil fuel activities and their large contingent of lobbyists at COP26; industry presentations exploring their innovation and sustainability approaches, changes to business models and the place of standards; sessions led by indigenous leaders setting out how a Western capitalist approach to nature is fundamentally at odds with their sacred values – a valuable reminder given the ongoing place of carbon trading; and the sharing of lived experiences and data about the differing impact of climate change on gender and the need for a holistic and fair approach for all.
Climate change and the law
By Thursday afternoon, the law was calling me back. I spend several hours observing informal consultations regarding future work of the Climate Technology Centre and Network. In teaching and research, I have arguing consistently about the need for the CTCN to engage with IP; again, there was no reference to IP. My frustration turned to fascination in watching the parallel contributions from states turn into new drafts overnight, then huddling, then huddling again, and developing compromises. A quick sprint to another queue led to the plenary to see the final decision making process regarding the Subsidiary Body for Scientific and Technology Advice. It seemed so mundane – but my previous meetings confirmed just how much work had gone into that formal gavelling. This set up me up well for the full plenaries and the final stages of the Glasgow Pact.
My key takeaway from the Law Society of Scotland’s 2021 conference was the call for a new approach by lawyers and judges to climate change litigation. This really resonated, particularly given the growing amount of climate change litigation throughout the world notably in the Netherlands and Pakistan. And it meant that at COP26 I was ready to hear calls from activists “if you are a lawyer, raise an action”. A fascinating area for future research and professional leadership is how this is to be done and the approaches one takes to established balances – are they too based in norms from which we need to move on?
The Glasgow Climate Pact
Then came the plenary exploring the second draft of what came to be the Glasgow Climate Pact. Optimism, at least from some, was growing. The draft referred to fossil fuels, the ocean and loss and damage. The plenary contributions brought informed, compelling and sharing of lived experience of need for action and the need for collection action – particular from Big Ocean states of the Marshall Islands and Tuvalu. China and India were notable in taking a different approach – but still calling for action, disagreeing as to how, and calling for more flexibility and the opportunity for their industry to take the path previous taken by industrialised western nations.
When I left on the Friday evening it was interesting to watch people: some were leaving in hope, some were ready for lengthy off line negotiations. Pizzas went past, rooms were made available for dialogue and it seemed to be more key than ever if a delegation was staying in a hotel on site or far away and with more limited support and information.
As I followed remotely on the Saturday, the third draft was delivered late and was less strong than the previous versions on loss and damage and the ocean, and as has been widely noted, ultimately a further last minute change was agreed regarding fossil fuels before agreement was reached.
Still more to do
My own view is that something was achieved, but there could have been more and there needs to be more - more in new approaches to values, goals, rewards and collaboration. On that last Friday, I was asked if I thought that the public engagement, the side events, the protests make much difference or if everything is agreed in advance. The COP26 experience suggests that the negotiations are alive but also that there is more to be done to more fully entrench the need for a fair, coherent and new approach to climate change – and that time has run out for a longer term approach.
I was left reenergised about the importance of the profession, individually and collectively, in Scotland and elsewhere, taking a leading role in framing new practices norms and the new balancing acts. which will be needed.