COP28 Week 2 Begins with Lofty Ambitions, and Serious Questions of International Law

Anthony Moffa, Professor of Law, University of Maine School of Law

Dec. 9, 2023

During the rest day, the University of Maine delegation regrouped and welcomed a new batch of delegates from Maine Law.  Three third-year law students – Geeta Talpade, Natalie Nowatzke and Bryant Wolff – will join me in representing our university at what looks to be a short, busy week two of COP28. 

After an unprecedented efficient start to COP28 on Loss and Damage, some of the most important issues on this year’s agenda remain open as week two begins.  The Global Stock Take has taken center stage as home of more than a few of those contentious points – like how to address continued fossil fuel development and use (phase out versus phase down and abated versus unabated) and how to reassert the 1.5C target (as an aspiration or a binding commitment).  In another part of the negotiations, parties have been struggling with how to operationalize Paris Agreement commitments to emissions reduction credits and international carbon markets, which will be increasingly important as recent net zero commitments are triggered. 

COP President Sultan Al Jaber recognized the challenge ahead as he opened the second week of COP28.  He set an ambitious schedule for the weekend, featuring an overarching informal meeting of ministers to consult the presidency on the fossil fuels commitments throughout the agreement. 

Of particular interest to Maine, the Canadian environment minister has been tasked with taking on a leadership role, particularly with respect to the increasingly comprehensive Global Stock Take negotiations.  Those negotiations have been thus far even more contentious than expected and produced draft texts that, as described by Simon Stiell, the United Nations Climate Change Executive Secretary for Climate Change, reflect many lowest denominator positions.  

He went on to emphasize: “If we want to save lives now, and keep 1.5 within reach, the highest ambition COP outcomes must stay front and center in these negotiations.”  

In the evening, former French prime minister and COP21 president Laurent Fabius made clear that in his view, we are not on track for for 1.5C and that he has communicated to the COP28 president that there needs to be an understanding that fossil fuels must be replaced by renewables.

Sure enough, late in the afternoon an updated draft text for the Global Stock Take came from the newly appointed ministers.  At 27 pages, it was lengthy and comprehensive, with many options for some of the most controversial issues.  Word spread around Dubai Expo City that the Global Stock Take agreement could play the role of the cover document for COP28.  As the lawyers in the delegation, our group discussed how such a move might impact the binding nature of any commitments made in the Global Stock Take.  Generally, such cover decisions in international treaties function like preambles do in domestic law – they carefully state lofty aspirations without imposing obligations.  If COP28 sets the precedent that stock-taking belongs there, it could undermine the ability to hold countries (and the world) to the commitments they make under the Paris Agreement.

 Tellingly, on the question of fossil fuels, the draft presented four options: two that used unqualified “phase out of fossil fuels” language, two that used “phase out of unabated fossil fuels.”  A late evening meeting featured heads of country delegations responding to and commenting on the new text.  Unsurprisingly, it was clear that agreement was still quite a distance away.  More to come as the negotiations evolve.