Climate Diplomacy in an Era of Permacrisis

Humanity is facing in an era marked by turbulence, uncertainty, and instability. Increasingly referred to as a permacrisis, this period is defined by a series of complex and interconnected crises that seem unrelenting in their scope and impact, such as the escalation of armed conflicts, the rise of right-wing political movements, and an unprecedented scale of displacement and migration, to name but a few. The widening economic and social divide between the Global South and North further exacerbates these challenges, highlighting deep-rooted inequalities in resources, access to technology, and opportunities for sustainable growth.

Underlying these crises is the existential threat posed by climate change, which continues to accelerate, impacting ecosystems, economies, and human livelihoods across the globe. As States grapple with the implications of extreme weather events, rising sea levels, and biodiversity loss, the urgency of unified, global action has never been greater. It is against this backdrop that COP29 is taking place in Baku.

The acronym ‘COP’, short for ‘Conference of the Parties’, occupies a central position in international climate discourse. However, its perception is overshadowed by the view that it merely represents the procedural framing in which the pressing issues of climate change are being discussed, and not the venue for advanced negotiations the parties on future commitments and extensions. It is therefore unsurprising that there is a paucity of knowledge surrounding a number of key issues that pertain to the COP. Chief among these are its institutional framework, the functions it is expected to fulfil, and its status under international law.

The relatively recent emergence of the COPs since the 1990s can be attributed to two key developments: the increasing prevalence of multilateralism and the advent of a law of cooperation. Both of these developments may be viewed as outcomes of a growing interdependence between States in the context of global challenges, such as climate change, demanding collective action among the latter. As a result, framework agreements are increasingly being used as a type of treaty, particularly in international environmental law, with the 1977 Barcelona Convention for the Protection of the Mediterranean Sea against Pollution being one of the first. In view of the necessity for collective action in response to the existential threat of climate change, States adopted the United Nations Framework Convention on Climate Change (UNFCCC) in 1992.

The UNFCCC is a framework agreement. Its principal regulatory instrument, the Kyoto protocol adopted in 1997, was superseded by the Paris Agreement adopted in 2015. As is typical for framework agreements, the UNFCCC sets the ultimate objective of the “stabilization of greenhouse gas concentrations” (Article 2 UNFCCC) and leaves the specification of the Parties’ commitments to subsequent agreements that are open only to the parties to the UNFCCC. In this capacity, the Paris Agreement establishes a specific target, namely that of limiting global warming to 1.5°C above pre-industrial levels. The UNFCCC and the Paris Agreement are inextricably linked, despite not constituting a single functional unit. Nevertheless, the COP is responsible for administering them, providing an institutional mechanism for coordinating and developing the framework agreement (UNFCCC) along with its protocols, for which it serves as the meeting of the parties.The COP represents the supreme body of the UNFCCC and, in parallel therewith, the Paris Agreement. The functions of the COP are delineated in Article 7 UNFCCC, which is virtually identical to Article 16 Paris Agreement. The general functions of the COP concern the management of the UNFCCC and its Protocols. However, the COP also performs a number of more significant functions, including the task of interpreting the relevant texts, of making decisions on matters of substance, and of adopting legally binding decisions. In this regard, it is noteworthy that there is a growing tendency for the powers of COPs to expand, with instances where they have even encompassed the scope of proper law-making functions. This may be taken as an indication of COPs establishing themselves on the global stage as subjects of international law in their own right.

In this evolving context, we are witnessing a further development whereby States are increasingly turning to international courts and tribunals when dealing with highly political matters, such as those pertaining to climate change, most notably in the form of advisory proceedings. The latter provide a conduit for participation that is accessible to a diverse array of actors and stakeholders, including representation from civil society. This marks a substantial shift in the conceptual framework of international adjudication, moving away from a State-centric approach towards a more inclusive and diverse forum. Under this new paradigm, the voices of a multiplicity of actors and stakeholders can be amplified collectively seeking to engage with international courts and tribunals with a vision of transforming international relations from a system of hegemony towards a renegotiated and more equitable world order.

In addition to the challenge of engaging with a diverse array of actors and stakeholders, international courts and tribunals must also navigate a complex legal landscape. The increasing number of international legal instruments from a variety of regimes adds another layer of complexity to the task. This intricate interweaving of norms appears to be enmeshed and thus demands a comprehensive approach to confront the multifaceted challenges posed by climate change. The International Tribunal for the Law of the Sea (ITLOS) addressed these complexities in its 2024 advisory opinion on climate change by invoking the principle of systemic integration, as set forth in Article 31(3)(c) Vienna Convention on the Law of the Sea, thereby establishing a nexus between the 1982 United Nations Convention on the Law of the Sea, the UNFCCC, and the Paris Agreement. This raises the question of whether this may be a prospective course of action that can be anticipated from the advisory opinions that are currently pending issuance by the International Court of Justice and the Inter-American Court of Human Rights. It is hoped that by engaging in a judicial dialogue, while it cannot provide a definitive resolution to the issue of climate change, may nevertheless provide a source of constructive, pervasive, potentially compelling arguments that could shift the dynamics of the negotiations taking place in Baku and inform the way the Parties approach the global challenge of climate change.

This Symposium provides a critical monitoring of this year’s COP and a platform for critical reflection on the multifaceted challenges that humanity is facing in tackling the climate crisis. It will look at the key issues currently under discussion by the Parties, with a particular focus on climate finance, mitigation strategies, and innovative technical solutions for addressing emissions.

We are pleased to kick-off the symposium with an introductory interview with Prof Margaretha Wewerinke-Singh, Associate Professor of Sustainability Law at the University of Amsterdam. Khaled was afforded the opportunity to inquire about the impact of the permacrisis on the climate negotiations and the pivotal issues on the agenda for this year’s COP.

Renee Valerie Fajardo, a climate and environmental law fellow and lecturer of the University of Miami School of Law, Alyssa Huffman, student fellow in the Environmental Justice Clinic of Miami School of Law, and Lorena Zenteno Villa, a Chilean attorney specialised in human rights, and, will launch the first part of Symposium focusing on climate finance. They will elucidate the principle of Common But Differentiated Responsibilities and Respective Capabilities (CBDR-RC). This principle underpins climate finance discussions, recognising that all States are responsible for addressing climate change but acknowledging differentiated responsibilities and varying capacities based on historical contributions and current economic status.

Continuing with a focus on climate finance, Patrick Toussaint, a doctoral candidate at the University of Eastern Finland, and Adrián Martínez Blanco, the director and founder of the NGO La Ruta del Clima, provide an overview of Loss and Damage (L&D). This issue has become a central focus in climate negotiations, with the Fund for Responding to Loss and Damage (FRLD, the Fund) at the forefront of COP29 discussions. They will demonstrate that, while progress has been made, for example in the establishment of the Fund and the ongoing review of the Warsaw International Mechanism (WIM), there are nevertheless a number of critical issues that remain to be addressed, including funding shortfalls, operationalisation challenges and the need for a clearer governance structure.

Linking the subject of the need for mitigation with the question of its financing and climate responsibility, Theresa Mockel, a legal advisor at the NGO ECCHR, and Johannes Wendland, a legal advisory for business and human rights at the NGO HEKS, will discuss the case Asmania et al. v. Holcim. This case of strategic litigation exemplifies the pursuit of corporate accountability for climate-related Loss and Damage, with plaintiffs from a small Indonesian island suing the Swiss cement company for its significant contribution to global emissions. They will elaborate on how this lawsuit serves to highlight the urgent need for corporate responsibility in addressing climate justice, emphasizing that companies responsible for historical and current emissions must compensate for the damage they have caused, in line with principles of tort law.

The last part of the symposium will deal with another key topic of COP29: innovative technical solutions for dealing with emissions. These are currently raising many hopes, while their legal regulation still needs to be clarified. Lena Wammer Østgaard, a legal advisor at the boutique law firm IOM, will examine the topic of carbon capture and storage (CCS) and demonstrate how it plays a critical role in achieving the climate targets set by the Paris Agreement, particularly in reducing emissions from sectors that are difficult to abate, such as heavy industry. She will underscore that while CCS is an essential component of the global decarbonisation strategy, it must be implemented in conjunction with other technologies, including renewable energy, energy efficiency, and carbon dioxide removal (CDR).

Likewise focusing on innovative technical solutions, Dr Tony Cabus, a postdoctoral researcher at the Walther-Schücking Institute for International Law, concentrates on CDR methods. In doing so, he takes a different stance than the the latter blog post. He emphasises the importance of distinguishing between methods that work with capture and storage (CCS) on the one hand and the actual removal (CDR) of CO2 on the other. He argues that the use of CCS methods is controversial, with concerns that it could serve as an excuse to delay necessary emissions reductions.

The Symposium will conclude with a series of interviews, to be published the week following COP29, with a range of experts from diverse fields who will provide a critical analysis of the COP’s outcome.