The future of negotiations under the climate change COP (Conference of the Parties): Implementation is not enough

Abstract

Ever since the adoption of the Paris Agreement's rulebook, the United Nations (UN) climate regime has been in an implementation phase. Patchy and weak implementation of the Paris Agreement obligations, however, has led to calls for the Conference of the Parties (COP) to take a more active role in promoting delivery. However, the COP's scope for action is constrained by its limited mandate and unwieldy process. There are potential ways around these constraints, such as leveraging the authority of COP Presidents, reforming the COP, or setting up ‘climate clubs’ outside the COP. However, given that global emissions continue to rise, and ambition also remains insufficient, this commentary argues for a more radical approach: introducing a voting rule, and negotiation under the COP of new optional legal agreements on specific emission sectors and sources.

Introduction

For nearly three decades, intergovernmental negotiations under the United Nations Framework Convention on Climate Change (UNFCCC), centred around the annual Conference of the Parties (COP), ¹ have been at the heart of international efforts to tackle climate change. The primary role of the COP over much of this period was clear: to establish goals, rules and institutions to build up a comprehensive regime that would structure international action on climate change. With the Paris Agreement and its rulebook now in place, many researchers argue that the UN climate regime is broadly complete and the rulemaking phase largely over, giving way to a new era of implementation (Aykut et al., 2020; Bauer et al., 2020; Carlton and Victor, 2022; Kinley et al., 2021; Müller et al., 2021; Rajamani et al., 2023; Rockström et al., 2023). In tandem, many envisage a decline in high-stakes political negotiation and diplomacy, with a shift instead to more technical discussions among experts (Bauer et al., 2020; Carlton and Victor, 2022). However, this purported pivot towards technical implementation comes at a time of relentlessly rising global emissions, escalating climate disasters, and a Paris Agreement that is struggling to fulfil its logic of triggering ever-stronger ambition and action. Against this troubling background, this commentary considers what the most effective role of the COP might be as we approach the second half of this ‘decisive decade’ (Besharov et al., 2021). Is it the case that ‘all efforts must now be focused on one thing, delivery’ (Rockström et al., 2023; bolded in original), or is there a need for a more radical approach and a new round of rulemaking?

An expanded implementation role for the COP

Managing expectations

Effective implementation of the Paris Agreement's obligations is, of course, imperative. Full implementation of the Paris Agreement's nationally determined contributions (NDCs) would bring projected warming for 2100 within touching distance of the 2°C ceiling and some way towards 1.5°C (CAT, 2023 ² ). As policies currently stand, however, a large ‘implementation gap’ remains (Fransen et al., 2023), with the world on course for warming of 2.7°C, and potentially as high as 3.4°C. ³ Much more effort is therefore needed on NDC implementation, arguably even more so than on raising ambition, which tends to dominate the political and media agenda.

As the focal point of international climate change action, the COP obviously has a key role to play in this. However, it is important to manage expectations as to how much it can do. Domestic implementation of international treaties is ultimately the responsibility and prerogative of the government parties that signed up to them (Buylova et al., 2023). The COP has no mandate to prescribe or recommend policies, even those that are patently necessary to achieve the Paris Agreement's goals. Any such policy-oriented role was explicitly excluded from the Paris Agreement, as it has been throughout the COP's history. While the European Union and others, notably small island states, have long championed a more operational role for the COP in identifying or recommending effective policies, these efforts have always been decisively rebuffed, notably by China, Saudi Arabia, and the US. Multiple workshops, dialogues and technical expert meetings have been convened over the years under the COP to analyse and exchange information on promising sectoral policies, but so far, these forums have served more as substitutes for, rather than triggers of, real action.

Just as with policy prescription, the Paris Agreement deliberately limits the COP's role in monitoring implementation and enforcing compliance. Emissions data and information on policies are reported by parties and reviewed by expert teams under the ‘enhanced transparency framework’, but neither the ‘implementation and compliance committee’ nor the COP itself can single out, let alone criticise, any poor performers. Similarly, the five-yearly Global Stocktake is confined to assessing ‘collective progress’ towards the Agreement's global goals, without any individual naming and shaming. This seriously circumscribes any additional ‘admonisher’ role (Aykut et al., 2020) that the COP could take on.

Both these constraints on the COP reflect the realities of the multilateral system, where many large and powerful countries guard their sovereignty jealously, and eschew any hint that a UN body might influence their domestic policymaking or enforce rules. They also reflect the continued dominance of laggard countries: those that may acknowledge the reality of climate change but want to move slowly, and therefore resist any punchier role for the COP.

Bypassing COP constraints: signalling through ‘headline decisions’

There are options for bypassing these constraints. Non-state actors (NSAs) for example – think-tanks, environmental Non-Governmental Organisations – openly analyse and comment on ambition and implementation trends, naming and shaming (or praising) individual countries in a way that the COP cannot. Another significant option is leveraging the authority of COP Presidents to champion particular issues and force reluctant countries to confront them. Since the Paris Agreement, several COP Presidencies have taken a proactive role in this way, notably through so-called ‘headline decisions’ sending high-level signals or messages about the policy direction of travel. The UK Presidency of COP 26 in 2021, for example, focused on the need to phase out coal production and use. After tense last-minute talks to accommodate a blocking coalition led by India, the ‘Glasgow Climate Pact’ was adopted, calling for ‘accelerating efforts towards the phasedown of unabated coal power’ (decision 1/CMA.3). This was the first time that coal had been mentioned in a COP decision (Depledge et al., 2022), a landmark that was widely interpreted as ‘the end of coal’ (New York Times, 2021). Building on this political advance, COP 28 in 2023 called for ‘transitioning away from fossil fuels in energy systems…’ and ‘tripling renewable energy capacity globally’ (decision 1/CMP.5), although not without difficult behind-the-scenes wrangling brokered by the United Arab Emirates Presidency. Once again, this signal was picked up by the media as ‘ending fossil fuels’ (BBC, 2023). As Carlton and Victor (2022) explain, the ‘message coming out of the COP matters….many look to it to gauge the temperature of progress on global climate action’.

However, there are caveats. The room for manoeuvre of COP Presidencies is constrained by the need to stay (or at least appear) scrupulously objective. Moreover, ‘headline decisions’ are not legally binding. They carry some political weight – and provide ammunition for civil society to lobby for change – but ultimately, they can be ignored without legal consequence. Saudi Arabia, for example, dismissed the COP 28 call as ‘only optional’ (Lo, 2024). Furthermore, given that all such decisions must be taken by consensus, recent ‘headline decisions' have represented a lower common denominator outcome, with convoluted and caveated language that failed to state the obvious: that to avoid dangerous climate change, coal and fossil fuels must be phased out (Rockström et al., 2023). The signal conveyed was thus much weaker than needed, potentially leading businesses, financial institutions and other key organisations that control emissions to conclude that governments are not really so serious about climate change, and they can therefore quietly take the foot off the pedal of climate action.

Institutional reform

Anxiety over emissions that continue to rise, and the apparent inability of the COP to do much about it, have prompted widespread calls for its reform. In an open letter to the UN Secretary-General, Rockström et al. (2023) denounce a ‘lethargic process’ at odds with both climate science and real-world low-carbon opportunities. Rajamani et al. (2023:7) agree that ‘UN climate negotiations and the COP process … are not best suited to deliver implementation, nor to be dynamic and responsive to the demands of this critical decade’.

Proposals for reform are many and various. Most see a need to simplify or ‘de-glamorize’ the process through practical changes, such as moving COP sessions to a biennial schedule, limiting delegation size to avoid unwieldy ‘mega-COPs’, and rationalizing over-inflated agendas (Müller et al., 2021). Several recommend more robust leadership, with past, present, and future COP Presidencies working more closely together, for example, or a more active role for the UN Secretary-General, UN Climate Secretariat, or Climate Champions (who work with stakeholders) (Müller et al., 2021; Rockström et al., 2023; Roesch and Curtin, 2022). Many advocate better integration between input from NSAs – the so-called ‘climate action agenda’ – and the diplomatic negotiations, to promote decision-making in the COP that is more relevant to the real world (Carlton and Victor, 2022; Rockström et al., 2023; Roesch and Curtin, 2022). All these proposals have merits, and some are being considered under the COP. The problem, however, is that such reforms mostly involve only incremental change. The COP might become more efficient, but institutional reform is unlikely to make it significantly more effective to the extent required.

Towards transformational change: Voting and new legal agreements

The problems with the COP and the UN climate regime are more fundamental. Optimism that the new structure of the Paris Agreement would prompt a step-change in climate action now looks increasingly misplaced. As Rajamani et al. (2023:8) admit, ‘while there is evidence that the logic underpinning the design of the Paris Agreement is beginning to work, it is doing so falteringly and out of step with the speed and momentum necessary’. We may eventually come up against the awkward truth that the Paris Agreement's non-legally binding, laissez-faire approach is inadequate for the task of effectively controlling climate change. At the same time, decision-making in the COP is dragged down by vested interests, both countries reliant on fossil fuels or otherwise obstructive to the process, and related private interests (Depledge et al., 2023; Nasiritousi et al., 2024). A pivot towards implementation and institutional reform is thus not enough: to effect transformational change, the COP needs to tackle the root causes of the slow progress to date (Nasiritousi et al., 2024).

The moment may therefore have come to challenge two central tenets of the COP process: consensus decision-making, and universality. The absence of a voting rule and the necessity of reaching consensus on each and every decision has long been a brake on progress (Nasiritousi et al., 2024; Roesch and Curtin, 2022). For decades, tiny handfuls of parties – often oil exporters, sometimes radical Latin American nations, occasionally the US, Russia, India and China – have blocked (more far-reaching) decisions acceptable to 180+ others. It may be time to finally tackle this issue, and introduce a carefully-crafted voting rule, at least for some decisions. Although it is beyond the scope of this commentary to consider all the dimensions involved, there are legal channels that could be invoked to do so, if the political will were there (see Depledge, 2024). A voting rule, even with an onerous majority threshold such as seven-eighths, would almost certainly unlock far stronger language for ‘headline decisions’, sending a more powerful and definitive signal about the inevitability of the low-carbon transformation.

Adopting tougher headline decisions through voting would mark a move away from the assumption of universality that has long guided the UN climate regime. All three climate treaties – the Paris Agreement, UNFCCC and 1997 Kyoto Protocol – enjoy almost universal participation, and a great strength of the Paris Agreement was thought to be the global application of similar obligations. It may be time, however, to acknowledge that moving at the pace of the slowest is too high a price to pay for universality. While individual countries can, and sometimes do, take more ambitious measures than those required by the UN climate regime, they are far more likely to do so with international structures in place to address competitiveness concerns. This is the reasoning behind the idea of ‘climate clubs’ (e.g. Falkner et al., 2022), in which small groups of more ambitious countries jointly table more rigorous pledges (usually on a specific policy area). Such ‘climate clubs’ have formed, but so far, only outside the COP process, even if they often use COPs to announce their launch. COP 26 in 2021, for example, saw the launch of ‘Breakthrough Coalitions’ on power, steel, hydrogen, road transport and agriculture. They typically involved 30 to 50 interested governments, in some cases also NSAs, signing up to declarations of intent championed by the UK COP Presidency. Other climate clubs include the Powering Past Coal Alliance, the Beyond Oil and Gas Alliance and the Global Methane Pledge. While welcome, the drawback behind these climate clubs is their lack of legal force, sometimes weak follow-up procedures, and often limited expansion beyond their founding participants. Too often, therefore, their impact has been limited.

A potentially more powerful option would be to bring the ‘climate club’ approach to the COP process itself. That is, for pioneering countries – coalitions of the willing – to negotiate ambitious, and preferably legally binding, targets on specific sectors or issues under the COP, which could then be adopted as new optional protocols, amendments or annexes to the climate treaties. As noted above, sectoral initiatives have been tried in the past in the UN climate regime, with zero success. The difference here would be that the agreements would be both stronger – legally binding – and at the same time optional, and therefore not requiring global agreement or universal participation. One could imagine, for example, an optional annex to the UNFCCC or Paris Agreement with legally binding targets to reduce industrial methane, phase out coal, or increase the share of renewable energy. There could be others on high-emitting industrial sectors, such as steel. These emission sources have already been targeted by ‘headline decisions' and/or climate clubs, but new legally binding goals under the UN climate regime would likely greatly boost their effectiveness. Although this is rarely acknowledged, most parties to the Kyoto Protocol responded positively to their legally binding emission targets by implementing national legislation, with the treaty eventually achieving 100% compliance (Iacobuta et al., 2018; Shishlov et al., 2016). As well as European parties, these included, among others, Australia, Japan, New Zealand and Norway. Admittedly, some targets were generous (notably for Australia, the former Soviet republics and Eastern Europe) and a small number of parties did resort to carbon trading to achieve compliance. But all took their commitments seriously and stayed within the rules, surely testifying to the power of legally binding targets. Only one country – Canada – withdrew because it did not want to be liable for its target.

Because the proposed new legal agreements would be under the COP, there would be ready-made options for reporting, review and institutional follow-up. As optional agreements, there would be no expectation that all countries would join, and entry into force requirements would reflect that. Countries that were ready to do so could sign up and be subject to the legally binding obligations immediately, while others could enlist later. Different countries could initially sign up to different agreements, for example, to an agreement on industrial methane but not coal phase-out, or vice versa. This would be a start, which might encourage others to come on board. Promoting expanded participation over time would be crucial, and could be facilitated by economic or political incentives. Again, it is beyond the scope of this commentary to delve into the various options, but the legal avenues exist: it would be easier if a voting rule were introduced first, but not impossible without it.

The election of Donald Trump as US President would seem, at first glance, to dash any prospects of advancing on these proposals. However, assuming Trump does withdraw from the Paris Agreement as expected (and perhaps from the Convention too), the absence of the US and its exceptionalist positions might ironically make it easier for others to go ahead.

The proposal that the COP should agree on a voting rule, and negotiate new issue--specific optional legal agreements, is a radical one, going against the widely held assumption that the Paris Agreement represents the endpoint in the legal development of the UN climate regime. But this assumption is beginning to break down, as the inherent flaws in the Paris Agreement become evident, and vested interests continue to drag down progress. Given the very short window of opportunity still open to limit warming to 2°C, let alone 1.5°C, a renewed rulemaking role for the COP may be imperative.