Introduction
Advocacy goes beyond the courtroom. A good advocate can find themselves negotiating international treaties and making change for the world while still applying many of the concepts we learn in domestic U.S. classrooms. Mastery of material, charismatic presence, and creative hooks all make for a good advocate in a courtroom and on the UN floor. With great advocacy skills, a leader of a smaller, less influential block of states can make an opening remark that piques the world’s interest and finds its way into the text of a major international law treaty. Due to an impactful message and skilled negotiators, this is how AOSIS found success when they championed loss and damage funding at this year’s COP27.
What is the COP?
This November, I attended the second week of the 2022 United Nations Climate Change Conference in Sharm el-Sheikh, Egypt. The conference was the 27th session of the Conference of the Parties (COP27) of the United Nations Framework Convention on Climate Change (UNFCCC). This treaty was enacted in 1994 to combat the “dangerous human intervention with the climate system.”[1] The “COP” stands for Conference of Parties. The COP acts as the major decision-making body for the treaty.[2] Many international treaties have COPs where parties come together to revise these “live” documents and discuss ideas on how to improve them. However, in the news “COP27” or “COP 21,” folks are referring to the conferences for this climate change treaty.[3] Major pieces of international environmental law have come out of these COPs – the Paris Agreement at COP 21 and The Glasgow Climate Pact at COP 26, to name a few. Countries worldwide take turns hosting these large-scale conferences that grab international attention. This year’s COP had 33,449 participants, making it the second-largest COP in history.[4]
At the COP, three main things are occurring – negotiations, exhibitions, and side events. The negotiation space is where county leaders come together to discuss and vote on progress in completing the treaty goals, including pitching new ideas to add to the body of international law. Additionally, non-government organizations are welcomed to COPs to showcase what they are doing on issues pertinent to the treaty’s goals. The number of participants attending non-negotiation components is increasing each year. I spent most of my time at the COP in the negotiation spaces. Through my experience, I watched some of our world’s leaders advocate on behalf of their countries for hours on end on very dense topics. Their advocacy was unique because these individuals needed to have mastery of the subject matter, technical understanding of the legal terms of art they proposed in language changes, a sensitivity in discussing weighty topics, ability to connect cross-culturally, and passion that grabbed the attention of others in what can be a monotonous setting. I learned a lot about the international law space through this experience and how a good advocate can in turn affect global policy.
How do Negotiations Work? Where does advocacy have a place?
At each COP, the first week starts off when heads of states and their representatives take the floor.[5] Many, if not all, make opening remarks that summarize their country’s commitment towards the goals of the conference and what positions they plan to take during negotiations and domestically to achieve the goals of the treaty.[6] In this way, these remarks draw on many of the skills used to craft an opening statement. These heads of state often leave after the first week and leave a delegation of negotiators, typically led by the country’s ministers of environment to work in the negotiation rooms. They then represent the positions of their country, make pledges to join new “initiatives.” The positions these leaders take are based off of typically “months of prior discussions, policy papers and proposals prepared by groups of states, U.N. staff and other experts.”[7]
When negotiations begin on different agenda items, these ministers or heads of negotiation delegations sometimes make remarks regarding the specific agenda item being discussed. These also take a form like an opening statement. They aim to capture the country’s position and ideas on the matter, take positions of who they align with, and hopefully persuade others that their position is worthwhile to move forward with. Once all states who want to speak are given the floor, the negotiation of the text itself can begin. Typically, the secretariat will release a proposed text that acts as a jump-off-point. Then, state negotiators may chime in, line-by-line, with the text that their country would like reflected in the document. In that way, it resembles line-by-line edits that advocates engage in when drafting briefs with their co-counsel.
Alliance of Small Island States
While attending COP27, I worked for the Alliance of Small Island States (AOSIS). The government of Antigua and Barbuda currently chairs the Alliance. AOSIS is an intergovernmental organization established in 1990, consisting of low-lying coastal and small island countries worldwide. They are composed of 30 global states. They are part of a larger intergovernmental group, G77 + China. This group is made up of 134 developing nations.[8] AOSIS countries are extremely susceptible to climate change, which manifests as frequent and intense storms, increased frequency and length of droughts, salinization of their freshwater sources, and loss of habitat for humans and animals due to sea-level rise.[9] They advocate for greater address and inclusion of these issues and their voices in forums like the COP. One of the most jarring statistics I learned while being involved with the group is that, while they bear the burden of being most affected by climate change, they have contributed to less than 1% of the world’s greenhouse gas emissions.[10] While these effects are becoming increasingly recognized worldwide, the climate finance for these countries, namely small island developing states (SIDS), is low.[11] In mid-2022, “they only had access to $1.5 billion out of $100 billion in climate finance pledges to developing countries in 2019.”[12]
I saw the impact that a good advocate can have and also how an advocates’ roles extend outside of the negotiation room by watching the AOSIS Chair, Minister Joseph’s many roles play out at the COP. Notably, a nuanced issue that gets overlooked but was mentioned multiple times by Minister Joseph is that many nations who are part of AOSIS do not qualify for major debt suspension programs and general aid programs because they are deemed “too rich.” Countries in the Caribbean and Pacific, which benefit greatly from tourism and, in that vein, perform well in their “socio-economic achievements and development endeavors,” are put at a great disservice because they graduate from a Least Developed Country (LDC) to a Middle-Income Country.[13] In this new bracket, they lose the support that helped them get there and no longer qualify for aid that may be essential to their well-being.[14] For those reasons, amongst others, Loss and Damage and conversations surrounding funding for Loss and Damage have been a part of the AOSIS platform for the past thirty years.[15] Minister Joseph’s advocacy on this topic to the media and the general public was crucial and ultimately kept damning language out of the loss and damage funding final text. This shows that an advocate’s job doesn’t end once they leave the negotiation room. It also stems from keeping a public presence that aligns with their country or interest group’s position. Although there were many language changes to this document, his advocacy to the public and fellow member states ensured that countries would not be barred from funding mechanisms.
History of Loss and Damage Funding
In the context of climate change, “loss and damage” is a term used in the UN space to refer to “the consequences of climate change that go beyond what people can adapt to, or when options exist, but a community doesn’t have the resources to access or utilize them.”[16] Examples include the loss of coastal heritage sites due to unprecedented sea level rise or loss of lives, homes, and businesses due to the same.[17] The consequences that fall under the umbrella of loss and damage are economical and non-economic.[18] Historically, developed nations have been extremely resistant to using this term or supporting its use in these important documents. The reason for that is that wealthy nations are resistant to providing funding. Loss and damage has been crucial to those experiencing the brunt of the climate crisis along with adaptation and mitigation because it essentially means that folks will be provided support after they have experienced the impacts of climate change.[19] The hope is that international bodies will recognize loss and damage as a necessary “third pillar” of climate change regimes along with adaptation and mitigation.[20]
SIDs have hard-fought to incorporate this term for the past thirty years.[21] They have done so using some of the greatest and most passionate advocates on the global stage. It was first mentioned in 1991 when the UNFCCC was being drafted by Vanuatu on behalf of AOSIS as an insurance scheme to aid countries impacted by sea level rise.[22] It first found its way into text in the Bali Action Plan in 2007, but with no teeth.[23] The topic began to progress significantly when the Warsaw International Mechanism on Loss and Damage was created in 2013. However, this still lacked any mechanism to accrue and distribute funding to countries for loss and damage.[24] Again, the presence of loss and damage grew when it was included in Article 8 of the Paris Agreement in 2015.[25] However, this text still lacked any information on how countries would be compensated or how there would be any accountability in creating the fund. These calls to action came to a head at COP 26 in Glasgow. Countries particularly vulnerable to climate change coalesced to advocate for a new “finance facility or fund dedicated to loss and damage.”[26] These proposals were firmly rejected – richer countries did not want to be held accountable for their historical emissions. Loss and damage found its way onto the COP27 agenda. Advocacy for this topic was an issue of life or death for many.
Major Outcomes of COP 27: Loss and Damage Funding
COP27 was dubbed the “implementation COP,” meaning the concepts that had existed in theory in past COP texts would come to fruition with a clear plan to take effect and be executed in the near future.[27] The most notable outcome of COP27 was the historic agreement to establish a fund to address loss and damage, put onto paper in the text of the conference outcomes. Even further, a Transitional Committee was established to decide the details of what the fund should look like before COP28, so it will be ready to take effect.
While still an excellent feat, the road to achieving the final outcomes of establishing a loss and damage fund was hard-fought. The text of the loss and damage fund was highly contentious. The latter half of the second week of the conference consisted of sleepless nights where negotiations lasted until the early morning hours. The Secretariat released the final text when only one day remained in the traditional two-week span of the conference. This unaddressed agenda item and other loose ends kept the conference running two days past when the traditional closing ceremony was scheduled.
Multiple draft text proposals circulated from nations worldwide, from the largest and most powerful to the smallest. Consensus building took a lot of work. The original text proposed by the G77+China and AOSIS was very strong – it included the possibility of language that would call on “state contribution” for this fund, meaning countries would explicitly be asked to contribute. Ultimately, the language was weakened, and this was rephrased to multiple new sources of funding, silent on any contribution from counties themselves. Seeing a negotiation of such an important topic happen was extremely gratifying in the end but a nail-biter throughout the week leading up to that final text.
What I learned is that stamina is an important part of advocacy in the international space. Negotiators had well over 12-hour days and were expected to discuss line-by-line text edits until the early morning hours. While I knew stamina was very important for many lawyers, such as those who go to trial, seeing these negotiations play out took this to a new level. Further, these advocates needed to be flexible. In practice, this didn’t mean going completely off script with their plans. It meant having a very clear end goal in mind and similar to other negotiation exercises, and an absolute bottom line that you are not willing to cross over. While things became hectic and fast, AOSIS negotiators were able to always keep their eyes on the larger end goal they had in mind. They clearly knew the limits of what they would expect and what they would not. This shows extreme preparation on behalf of the advocates – they knew the issue at hand so well that they knew where they could bend and give leeway and where they could not. Their intense knowledge of the issue was apparent and helped them to balance flexibility with focus on a target.
Oral Advocacy at COP 27
Oral advocacy may not be what comes to the forefront of people’s minds when they think about these international conferences, however, the negotiation plenary rooms are filled with advocacy for hours a day for the conference’s two-week span. The nature of negotiations involves an immense volume of speaking so an individual’s message and delivery have to set them apart to be noticed. As an advocate myself, it was very interesting to see how the negotiators, including ministers, ambassadors, and other elected officials advocated for their country’s positions. While geopolitics play a role in where countries align, I do believe that the most impactful speeches on the plenary floors had to have some sway on the positions parties took. When discussing climate change and loss and damage specifically, the stakes are extremely high. Hearing intense, emotional messages from speakers who were able to convey the immediacy small island states require to address these issues is very likely what got the loss and damage fund over the finish line. Clips of the most impactful pleas circulated the internet during the COP and rallied intense public support for the fund which had to put some pressure on governments to at least address the issue.
Conclusion
As a law and graduate school joint degree student, I have tailored my education to focus on international environmental law and advocacy. Attending and following along with the live progress of COP27 exposed me to a myriad of new environmental concepts but simultaneously showed me how many concepts I was familiar with from class worked in practice. I am happy to share that many skills we learn as student advocates can find use beyond the courtroom and are transferable to the international space. Many people in these negotiation spaces have legal education and degrees. To see negotiations in action felt like a marriage between all the areas of legal study I enjoy. I hope that other students may feel inspired to see how their advocacy career can take them into areas of the law they may not have expected, just as it has done for me.
[1] United Nations Framework Convention on Climate Change, Article 2: Objective, https://unfccc.int/resource/ccsites/zimbab/conven/text/art02.htm.
[2] Everything You Wanted to Know About COP But Were Afraid to Ask, United Nations Climate Change (Oct. 18, 2021), https://unfccc.int/blog/everything-you-wanted-to-know-about-cop-but-were-afraid-to-ask.
[3] What is COP? NOAA Climate.gov (Nov. 7, 2022), https://www.climate.gov/news-features/understanding-climate/what-cop#:~:text=COP%20is%20an%20international%20climate,on%20Climate%20Change%20(UNFCCC).
[4] Robert McSweeney, Analysis: Which countries have sent the most delegates to COP27?, CarbonBrief (Sep. 11, 2022), https://www.carbonbrief.org/analysis-which-countries-have-sent-the-most-delegates-to-cop27/.
[5] Shelly Inglis, How global climate negotiations work, and what to expect from the COP26 summit in Glasgow, PBS (Oct. 28, 2021), https://www.pbs.org/newshour/science/how-global-climate-negotiations-work-and-what-to-expect-from-the-cop26-summit-in-glasgow.
[6] Id.
[7] Id.
[8] The Member States of the Group of 77, The Group of 77 at the United Nations, https://www.g77.org/doc/members.html.
[9] Michelle Scobie, Environmental justice for Small Island Developing States, ODI (Jul. 12, 2022), https://odi.org/en/insights/environmental-justice-for-small-island-developing-states/.
[10] Climate Change: Small Island Developing States, UNFCCC, https://unfccc.int/resource/docs/publications/cc_sids.pdf
[11] https://unctad.org/news/climate-finance-sids-shockingly-low-why-needs-change
[12] Id.
[13] Paul Akiwumi, Climate finance for SIDs is shockingly low: Why this needs to change, UNCTAD (May 24, 2022), https://www.diplomacy.edu/resource/graduating-from-least-developed-country-to-middle-income-country-status-a-trap-for-small-island-developing-states/.
[14] Hit by COVID and climate change, island states battle debt crisis, Republic of Moldova, Climate Change http://www.clima.md/pageview.php?l=en&idc=76&id=4776.
[15] Press Release: Historic Loss and Damage Fund established at COP27 in Sharm El-Sheikh, AOSIS (Nov. 20, 2022) https://www.aosis.org/historic-loss-and-damage-fund-established-at-cop27-in-sharm-el-sheikh/.
[16] Preety Bhandari, et al., What is “Loss and Damage” from Climate Change? 8 Key Questions, Answered, World Resources Institute, (Dec. 14, 2022), https://www.wri.org/insights/loss-damage-climate-change.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Bali Road Map Intro., United Nations Climate Change, https://unfccc.int/process/conferences/the-big-picture/milestones/bali-road-map.
[24] https://unfccc.int/topics/adaptation-and-resilience/workstreams/loss-and-damage/warsaw-international-mechanism#:~:text=The%20COP%20established%20the%20Warsaw,that%20are%20particularly%20vulnerable%20to.
[25] Paris Agreement art. 8, Dec. 12, 2015, Decision 1/CP.21 Paras 48-52, https://unfccc.int/files/adaptation/groups_committees/loss_and_damage_executive_committee/application/pdf/ref_8_decision_xcp.21.pdf.
[26] Preety Bhandari, et al., What is “Loss and Damage” from Climate Change? 8 Key Questions, Answered, World Resources Institute, (Dec. 14, 2022), https://www.wri.org/insights/loss-damage-climate-change.
[27] Zainab Usman, As Financial Pledges Trickle In, Did COP 27 Meet Its Goal of Implementation?, Carnegie Endowment for International Peace (Nov. 21, 2022), https://carnegieendowment.org/2022/11/21/as-financial-pledges-trickle-in-did-cop27-meet-its-goal-of-implementation-pub-88452
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