A global firm takes on global warming: DLA Piper and Georgia at the UNFCCC

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Jesse Medlong
DLA Piper, San Francisco
jesse.medlong@us.dlapiper.com

Elizabeth Callahan
DLA Piper, San Francisco
elizabeth.callahan@us.dlapiper.com

Introduction

Every law firm which hopes to lead in the world of ‘big law’ also hopes to be seen as ‘global’. But being a truly global firm means more than just having international offices and clients. One test of whether a firm’s ‘global’ character is truly part of its DNA is whether its global footprint is reflected in its pro bono work, especially given the extraordinary need for legal expertise throughout the world and the extraordinary disparity in its availability. That is precisely DLA Piper’s approach to pro bono. And few pro bono projects better exemplify this global mindset than DLA Piper’s representation of the country Georgia in negotiations under the United Nations Framework Convention on Climate Change (UNFCCC).

Every year, DLA Piper lawyers dedicate thousands of hours of work on international pro bono projects with New Perimeter, DLA Piper’s one-of-a-kind non-profit affiliate. New Perimeter provides long-term pro bono legal assistance in under-served regions around the world to support access to justice, social and economic development, and sound legal institutions. Through New Perimeter, volunteer lawyers at DLA Piper have been active participants in the Georgian delegation to the UNFCCC since 2012, at the 18th Conference of the Parties (COP18) to the 1992 Convention in Doha, Qatar.^[1]

UNFCCC support and background

Since COP18, DLA Piper has continued to support the delegation with advocacy, legal advice and research, negotiation skills, and English-language proficiency. Through these efforts, DLA Piper has helped build the delegation’s capacity to ensure its full participation in the UNFCCC process. The results have been profound. Through DLA Piper’s support, the delegation has doubled in size, and it has relied on DLA Piper’s services to address structural impediments to its full participation. But truly understanding the magnitude of DLA Piper’s impact in representing Georgia requires an understanding of how a country like Georgia is peculiarly disadvantaged within the UNFCCC process.

First, Georgia is a developing country. It has little historical responsibility for climate change and very little room to reduce emissions further. But more importantly for these purposes, Georgia’s small economy and limited resources make fielding a large delegation of experts prohibitively expensive. Wealthy countries often field several dozen delegates, with teams of experts focused on different work streams, while countries with fewer resources can send only a few delegates to cover all topics. Small staffing is a serious constraint in a process that routinely involves as many as ten separate, simultaneous negotiating tracks. DLA Piper’s presence effectively doubles the size of the delegation, which would otherwise consist of only two or three Georgian delegates. But even beyond physical presence, wealthy countries often have legions of sophisticated personnel supporting their delegations from back home ‘at capital’. Between 12 and 20 DLA Piper lawyers support Georgia in this capacity from the firm’s offices around the world. These volunteers provide daily updates on the negotiations (particularly important since the work streams still outnumber the delegates) and spot legal research. DLA Piper’s global span makes this background support available virtually around the clock which is a huge advantage for a small delegation such as Georgia’s.

Second, Georgia was until recently unaffiliated with any of the four officially recognised negotiating groups within the UNFCCC process. Decisions under the UNFCCC are made by consensus, with coordination and consultation performed by party-appointed officers presiding over the various UNFCCC work streams and bodies. But with nearly 200 parties, the process would be unmanageable if all countries were consulted individually. Therefore, the only way to manage that process is to rely on groups of countries that coordinate their positions. In theory, any party can still block consensus, but the use of these negotiating groups dramatically simplifies an already challenging process. The unintended consequence of this solution, however, is to exclude the few unaffiliated parties until the final votes, giving those Parties a stark choice: accept what was decided behind closed doors without consideration for their interests, or block consensus without having the political clout to extract meaningful concessions from the other parties.

Third, being unaffiliated carries another drawback for a developing country party. Nearly all the rest of the world’s developing countries are members of the so-called G77+China (‘so-called’ because the ‘Group of 77’ now comprises 135 countries). Many of its members also have small delegations. But even without large delegations or large teams at capital supporting them, these delegations can monitor the many ongoing negotiations because of the G77’s highly disciplined coordination, which includes multiple coordination meetings during each day of a COP. Other groups’ members coordinate their own activities to varying degrees, aligning many of their substantive positions and working in concert where possible during the negotiations. In this way, countries benefit from the size and expertise of others to advance shared interests. Unaffiliated parties cannot compensate for their small size in this way.

Finding a negotiating group

Just as DLA Piper’s volunteer lawyers have boosted the delegation’s size, DLA Piper also played a pivotal role in addressing Georgia’s challenges as an unaffiliated Party. In 2015, the delegation struggled to stay abreast of the fast-paced, multitrack negotiations during the historic COP21 in Paris. In that most difficult and important of COPs, it became clear that an increased numerical capacity was insufficient to overcome the other issues inhibiting Georgia’s full participation. The solution was plain: Georgia needed to join a negotiating group. It was there, in Paris, that DLA Piper and the delegation began a long-term project to determine how Georgia could accede to a group and therefore be treated as the sovereign equal it is.

Georgia’s unique policy aims and negotiating positions were incompatible with the G77’s large, consensus-oriented approach. And Georgia is not a member of the EU so cannot join its negotiating group. That left the Umbrella Group and the Environmental Integrity Group (EIG).

The Umbrella Group’s members are mostly donor countries (based on their inclusion in Annex I of the Convention) who coordinate very little on matters outside of the provision of finance, where their interests converge.

The EIG is, however, a diverse group of countries, comprising Liechtenstein, Mexico, Monaco, South Korea and Switzerland. Some of these members are considered ‘developed’ because they are ‘Annex I countries,’ while others (Mexico and South Korea) are non-Annex I countries and are deemed ‘developing’ under the Convention, despite their both having since become high-income countries. The EIG is also geographically diverse, with members in Asia, Latin America and Western Europe. And perhaps most important, the EIG is animated and united by its members’ sincere commitment to pursuing pragmatic but principled multilateral solutions for addressing climate change. That common purpose has given the EIG flexibility and a reputation as an honest broker of compromise.

The fit for Georgia was perfect. Georgia seeks to position itself as a ‘model developing country’ within the UNFCCC. Its professional bureaucracy, sophisticated accounting practices and relatively low corruption can attract greater foreign support for its national climate-related activities and provide an example to other developing countries. Georgia is also a very small emitter of greenhouse gases and is one of only a few countries that today emits significantly less than it did only a few short decades ago. These are precisely the traits that foster the kinds of ‘enabling environments’ for climate action and international cooperation the EIG has long advocated in negotiations under the UNFCCC. The EIG’s commitment to diversity also made it attractive, since Georgia would become the only member from Eastern Europe and the only member not in the OECD.

Joining the Environmental Integrity Group

Georgia’s push to join the EIG was a success that garnered significant attention in the world of climate diplomacy. DLA Piper aided that effort with the common tools of the legal craft: research, analysis, and advocacy. DLA Piper lawyers helped identify the EIG as the appropriate group for Georgia. DLA Piper also helped Georgia understand the process for acceding to the EIG and crafted a strategy for proposing and negotiating accession. In addition, DLA Piper approached the EIG on Georgia’s behalf to advocate accession and to persuade the other EIG members of Georgia’s potential to contribute to the work of the EIG. Those efforts paid off when Georgia joined the EIG as a full member at the end of COP23 in Bonn in 2017. Georgia has coordinated within the group ever since, to resounding benefit.

Membership in the EIG has allowed Georgia to participate directly in the UNFCCC process and even to influence outcomes in ways that were previously impossible. Georgia can now have its unique national perspective and interests heard and accounted for in the text of the decisions that constitute the primary work product of UNFCCC negotiations. For instance, Georgia has distinguished itself in advocating for fair representation in the UNFCCC decision-making process of Eastern Europe’s developing countries, a group that has long faced structural impediments to participation similar to those Georgia faced before joining the EIG. Access to the process allows Georgia to engage in the type of broad coalition building that makes achieving such ends possible.

Membership in the EIG and the resultant improvements in access have also created opportunities for Georgia to participate more prominently as full partners. At the COP25 in Madrid (2019), for instance, a Georgian delegate was elected to serve as Vice-Chair of the Subsidiary Body for Scientific and Technological Advice, which is one of the most important bodies constituted to serve the Convention, the Kyoto Protocol and the Paris Agreement.

DLA Piper’s pro bono representation of Georgia brings together lawyers from around the world to support an ambitious developing country in addressing one of the greatest global challenges in human history. It therefore both affirms and epitomises the firm’s global character. And as a unique partnership in pursuit of the public good, it illustrates the true potential for good that a law firm can achieve when its home community is the entire world.

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