Setting the Scene for COP29

Dear Margaretha, we would like to express our gratitude for accepting our invitation and for agreeing to this interview. We are delighted to have the opportunity to engage in discourse with such a distinguished expert, whose profound academic and professional experience are of immense value. Welcome!

As we noted in our introductory note to this symposium, humanity is facing an era of interconnected crises. In addition, we have to deal with the existential threat posed by climate change, which continues to accelerate. I would like to begin by enquiry as to the implications of these interrelated crises for the common principles and values that underpin the international community. In what way might a potential erosion of the latter affect the outcome of the forthcoming COP29 negotiations, with a particular focus on the outstanding issues relating to climate finance?

The convergence of crises—from geopolitical tensions and economic divides to escalating climate impacts—challenges the fundamental principles of cooperation, solidarity, and fairness. These principles are essential to confronting these crises, and without a clear commitment to them, we risk a downward spiral of mistrust that could stall negotiations altogether. At COP29, meaningful progress on climate finance is crucial to maintaining confidence in the negotiation process. Resolving outstanding issues, including the scale and equitable distribution of support, is necessary to forge commitments that bridge the North-South divide. A key component of a meaningful outcome is the formulation of an ambitious New Collective Quantified Goal for climate finance that reflects the actual needs and priorities of developing countries. Such an agreement could unlock the progress we need across the board—on mitigation, adaptation, capacity-building and indeed addressing loss and damage, which must be firmly incorporated in the goal.

The provision of scientific, educational, and technical support for climate change undoubtedly carries financial implications. However, the critical question is identifying which parties predominantly bear the responsibility for funding these efforts, as Renee Valerie Fajardo, Alyssa Huffman, and Lorena Zenteno Villa will elaborate on in more details in this Symposium. Are there principles of international law that could help clarify this responsibility?

The principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC) embedded in the UNFCCC, Kyoto Protocol and Paris Agreement remains key to climate finance discussions. While the Paris Agreement opens the door to contributions from all nations toward climate finance goals, it remains rooted in equity and due regard for historical responsibility and cumulative emissions. Factors such as adaptive capacity and present-day economic capabilities might be considered as part of equity and CBDR-RC. Critically therefore, recognizing the significance of such factors does not mean that CBDR-RC has become obsolete. Calls for more nuanced approaches to climate finance are often disguised attempts to erode CBDR-RC. A truly nuanced approach to climate finance addresses both past contributions and current capacities, as per CBDR-RC.

As evidenced by a number of national and international climate litigation cases, climate change has a detrimental impact on the enjoyment of human rights. However, national and international courts have thus far failed to adequately address the question of responsibility, particularly in relation to the issue of extraterritoriality. How is this issue related to the establishment of a Loss and Damage Fund (which will be further analysed by Patrick Toussaint and Adrián Martínez Blanco)?

Human rights impacts of climate change, affecting people beyond the borders of major emitters, underscore the need for accountability in extraterritorial contexts. Courts have been slow to enforce extraterritorial responsibility, particularly in regions where accountability based on cumulative emissions is most needed. The Loss and Damage Fund, which aims to support those most affected by climate impacts, is technically unaffected by these kinds of obstacles. States’ human rights obligations are ultimately not territorially confined, with obligations of international cooperation and assistance firmly embedded in treaties, including the UN Charter, as well as in general international law. Still, international courts’ clarification of the obligations of States and corporations for harms caused abroad could strengthen the new Fund and other mechanisms for redress for vulnerable populations.

Carbon offset projects and carbon storage or removal initiatives are often presented as key solutions to climate change, as Lena Wammer Østgaard and Dr Tony Cabus will outline respectively in this Symposium. Could this focus inadvertently create problematic incentives?

Carbon offset and removal projects can create incentives that, paradoxically, allow emitters to continue unsustainable practices under the guise of compensatory measures. This focus on carbon removal also tends to overlook the impacts on local communities, particularly concerning land use and displacement. Many experts therefore highlight the need for safeguards to ensure these projects respect human rights, prioritize genuine emissions reductions, and incorporate accountability mechanisms for human rights impacts. A fundamental question, however, is what a principled approach to carbon removal would look like. In my view, so-called market mechanisms may in practice be irreconcilable with broader goals of sustainable development and the imperative of preventing exploitation of vulnerable communities.

The long-term objective is to move away from the utilisation of fossil fuels towards the adoption of renewable energy sources. What strategies might be employed to facilitate the transition to renewable energy in a manner that simultaneously preserves the necessity for environmentally friendly energy sources and addresses climate change in a manner that is both just and equitable?

The transition to renewable energy must be managed with a dual focus on ecosystem regeneration and social justice. Strategies such as the integration of community-owned renewable projects, capacity-building initiatives, and just transition policies for fossil-fuel-dependent workers are critical to ensure that this shift benefits all sectors of society. Challenges include the risk of industry backlash, resource conflicts and the need for infrastructure and finance in lower-income regions. Addressing these issues requires a commitment to inclusive policymaking and a truly equitable distribution of resources, with a particular emphasis on safeguarding the rights and livelihoods of affected communities globally.

In a released framework for action, the Presidency of the COP29 has expressed its aspiration to engage with a diverse array of ‘international stakeholders’ in order to achieve more inclusive outcomes. Does this approach yield the desired inclusive outcomes, or are there gaps in the strategy that require further attention?

While engaging diverse international stakeholders can theoretically promote inclusivity, achieving true representation requires careful attention to whose voices are amplified. Often, the perspectives of Indigenous peoples, frontline communities, and smaller States are underrepresented, leading to outcomes that do not reflect the needs of those most affected by climate change. To address these gaps, COP29 would need to implement mechanisms that ensure these groups have a meaningful voice in decision-making processes. The opposite seems to be happening.

Could the advisory opinion delivered by the International Tribunal for the Law of the Sea influence the upcoming negotiations in Baku? If so, we would appreciate further explanation on how and why it might do so.

The advisory opinion by the International Tribunal for the Law of the Sea (ITLOS) and the forthcoming ones from the International Court of Justice (ICJ) and Inter-American Court of Human Rights (IACtHR) should help to clarify States’ responsibilities towards those suffering the consequences of climate change. ITLOS’s recent findings already underscore how breaching climate-related obligations under the law of the sea triggers State responsibility. Similarly, the ICJ’s and IACtHR’s opinions may be expected to offer insights into State responsibilities under international law for climate-related harm. Together, these proceedings should create momentum for productive COP29 discussions, promoting ambitious and legally grounded climate commitments. Absent those, other avenues could be pursued.

Thank you again for your willingness to take part in this interview and provide such perspicacious responses. We are already eagerly anticipating the next interview, which will assess the specific outcomes, following the conclusion of COP29.

The author serves as lead counsel for the Republic of Vanuatu in the advisory proceedings on climate change before the International Court of Justice. The views expressed in this article are those of the author and have no relation to her Vanuatu mandate.