Luke Kemp, a Research Associate at the Centre for the Study of Existential Risk, recently contributed to the Research Handbook on Mediating International Crises, a new collection of articles on modern conflict and international mediation.
Q. Dr Kemp, your article ‘Mediation Without Measures’ concentrates on conflict resolution in climate diplomacy, specifically. What first drew you to this topical subject?
The climate negotiations have persisted for over two decades without ever agreeing on any official rules of procedure. Instead, they provisionally adopt them every year. I discovered this fact during my PhD while investigating why consensus is used in the negotiations and not majority voting. This naturally led to questioning how you resolve conflicts without any official rules of procedure. The International Court of Justice (ICJ) is an option, but has limited coverage (72 countries), little experience with climate and requires state consent to fall under its power.
Underpinning this was a realisation that conflict over climate change is going to become increasingly prevalent in the future. Conflict between countries will rise alongside sea-levels and temperatures. We need to make sure that we resolve these conflicts politically rather than physically.
Already there has been a successful legal case against the government of the Netherlands. New suits are being pressed against others such as the US, Norway and New Zealand. All of these have luckily occurred under domestic legal systems with clear arbitration. International cases are likely to surge in the future. These include disagreements over who is responsible for the impacts of climate change, and who should pay for preparation and recovery (known as ‘loss and damages’ in the negotiations). We need to have an effective fair and clear way of mediating and defusing this discord.
Q. What were your findings?
The United Nations Framework Convention on Climate Change (UNFCCC) is trapped in a state of ‘procedural purgatory’. It is locked into a state without any official rules on mediation or decision-making. Consensus is used an interim measure. Yet the high threshold set by consensus makes adopting voting, or mediation measures, frustratingly difficult.
The climate negotiations were always intended to have formal rules on mediation. Article 14 of the Convention allows for the adoption of an ‘annex on arbitration’ and a ‘conciliation commission’. The annex on arbitration would set out procedures for resolving disputes. If the disagreement isn’t quelled, then a conciliation commission would come into play. It would consist of a joint-elected chair and several countries requested by the two disputing nations. Both approaches seem logical but were never adopted.
Instead, climate diplomacy has relied on ‘meditation without measures’. This is characterised by the use of clever legal wording to delay or avoid conflict, as well as increasingly secretive and exclusive practices. This included the ‘minilateral meeting’ of major powers during the Copenhagen talks in 2009. Similarly the French deployed secretive ‘invisible meetings’ of up to ten negotiators on key issues to help craft the 2015 Paris Agreement on Climate Change. The approach has sometimes borne fruit (Paris) and at other time poison (Copenhagen). In general it has made for a less transparent, procedurally just process that is increasingly reliant on the host nation of the climate summit (the President).
I term this as ‘maladaptive mediation’. It has made for a volatile and risky approach to mediation. Even when it has worked it has not helped to resolve underlying disagreements. The Paris Agreement didn’t find an effective way to differentiate the responsibility of countries. Instead it simply let them choose their own targets and baselines. The current approach to mediation is one of procrastination rather than resolution.
Q. How can climate conflicts be mediated in the future?
Negotiations should reopen Article 14 and adopt both an annex on arbitration and a conciliation commission. This would provide a clear and transparent foundation to discuss and resolve conflicts. Ideally it would give civil society an active role in contributing to the process. It could also allow for objective third-parties to be designated as mediators. This should be experienced mediators from a neutral background who are part of the UNFCCC secretariat.
In short, it needs to revive old rules and ascend from procedural purgatory. Doing so could help to give the Paris Agreement teeth and navigate climate conflicts more broadly.
In practice, this will be difficult without first instituting new decision-making. The pressure to do both will be amplified as the impacts of climate change worsen and conflicts breed. Until such a time, climate negotiations will continue to be a legal zombie which limps on, kicking the can of conflict down the conference-paved road.
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