Already an IBA member? Sign in for a better website experience

Climate crisis: lawyers help set agenda with COP26 work

Rachael JohnsonWednesday 27 October 2021

The 26th UN Climate Change Conference of the Parties (COP26) presents important opportunities for lawyers involved in the summit to help shape the climate action agenda and move it forward.

Lawyers working on this year’s COP – to be held in Glasgow between 31 October and 12 November – have already experienced challenges because it’s being held during a global pandemic. The event has already been postponed from 2020 because of the severity of the pandemic at that point.

Claire Macmillen and Julia Goring job-share leading the Clean Energy and Climate Change Legal Team at the Government Legal Department in the UK. Goring explains that, as the incoming COP presidency, the UK wanted the event to be inclusive, accessible and safe, so as many people as possible could attend. She says their team has worked on the legal advice associated with this challenge, for example ensuring that accredited delegates could be offered a Covid-19 vaccine before attending. ‘You can imagine the contracting work, the IP [intellectual property], the sponsorship work, aside from ensuring the Covid travel regulations enable us to have an inclusive yet safe COP,’ says Macmillen.

Nattley Williams is a legal officer in the Legal Affairs Division of the United Nations Climate Change Secretariat. She says that in 2020 the team advised on how to proceed with the climate change conferences planned for that year in view of the pandemic. This formed part of the procedural aspect of the team’s work, which includes advising on institutional and process issues regarding COP conferences and providing legal support to the Secretariat and to two compliance committees – one under the Paris Agreement and one under the Kyoto Protocol.

The team Williams is part of also offers support to governments for inter-governmental negotiations. It gives substantive advice on the provisions of the climate agreements, the UN Framework Convention on Climate Change, the Kyoto Protocol, the Paris Agreement and the decisions of the governing bodies.

Williams says the team gives their understanding of a provision, as it’s the Parties’ prerogative to interpret their own agreements and decisions. ‘We work a lot with the secretariat teams to advise on the treaty text and the decisions of the governing body that expand or further clarify a provision,’ she says.

Williams says the team will be at COP26 assisting Parties and secretariat teams to ensure consistency and clarity in the draft texts being negotiated.

It’s all very well and good to make the pledges, but how do you make these into translatable actions? The law can be a very powerful force in that

Claire Macmillen
Deputy Director, Clean Energy and Climate Change Legal Team, UK Government Legal Department

Williams has also been involved in negotiations to create innovative institutions developed to address the specific challenges posed by the climate crisis – for example, the Adaptation Fund, which allows countries to access funding and develop projects directly through accredited national implementing entities.

There’s a sense that the law and legal work can help translate words into action when it comes to addressing the climate crisis. ‘It’s all very well and good to make the pledges, but how do you make these into translatable actions? The law can be a very powerful force in that,’ says Macmillen.

She describes how the UK’s Climate Change Act, with its legally binding carbon budgets, has influenced discussions about net zero so that it’s now commonplace to discuss this and other sustainability issues. ‘You can see the value of a rules-based and law-based system to drive those changes,’ she says.

For Williams, it’s important to ensure the decisions taken at each COP are ‘actionable by Parties, by governments, by policymakers […] to take the next step, take the next decision’ and move action on climate change forward. Her role in ensuring there’s clarity in the texts negotiated at the talks is central to this, because ‘these words at this international level are the main drivers for the action on the ground,’ she says.

Jean-Pierre Douglas-Henry is Managing Director, Sustainability and Resilience at DLA Piper, which has been appointed by the UK government as Provider of Legal Services for COP26. ‘This comes at an absolutely critical time for the world in climate terms and our approach has been multi-layered,’ he says.

As part of its COP26-related work, the firm has committed to holding client-facing roundtables before, during and after COP26. These roundtables will seek to engage with clients on issues linked to the COP agenda – for example, carbon pricing, sustainable finance and pathways to net zero. Clients will discuss the progress they’ve made and the obstacles faced.

Douglas-Henry argues that law firms have a role to play in facilitating and enabling these conversations between clients, so that their perspectives can be heard.

He also argues that collaboration between law firms is necessary to address the climate crisis with the urgency required. ‘What we’re saying is, let’s share best practice […] because these are existential threats, they transcend individual profit making and competitive norms and they require us to work together,’ he says.

Douglas-Henry hopes COP26 will provoke introspection among law firms about whether the contribution they’re making to address the climate crisis is sufficient. He argues that ‘the Paris Agreement has driven a redefinition over time of what business is for.’

He talks about the current focus on purpose in the business world and the idea of making profit in a sustainable way, as well as the need to engage with all stakeholders, and links these themes directly with how law firms are run. Traditionally, lawyers have said their purpose is to give legal advice. However, he argues, ‘the fact is they too are businesses and face all the same issues.’

Many law firm leaders across jurisdictions are seeing environment, social and governance issues beginning to influence their business, from attracting talent to being appointed to a panel. This trend will continue to grow as the focus on these areas from a range of stakeholders intensifies. COP26 offers a focal point through which the profession can consider its environmental impact and build on efforts to address it.

Image: Song_About_Summer/Shutterstock.com

Download the IBA Global Insight app

Access expert analysis on international rule of law, business and human rights