Jacob Werksman is Principal Adviser for international aspects of EU climate policy to the European Commission’s DG CLIMA and EU chief negotiator at the international climate conference COP 27. Having previously worked for environmental NGOs, Werksman is now one of the Commission’s key figures responsible for EU climate foreign policy.

Our author Jakob Gomolka met Werksman when he attended COP 27 in Sharm-al-Sheikh, Egypt, as an observer for youth NGO Young European Leadership (YEL). Werksman had briefed the YEL delegation about EU positions in anticipation of COP. After the conference, Werksman agreed to an interview offering his inside perspective on how the negotiations had proceeded. 

This is a pre-print of the interview that will also be published in the upcoming edition of the European Studies Review.

One of the things that struck me most about going to COP was that, on a personal level, it is this giant puzzle of things: It’s so many people coming together, it’s diplomats working until late into the night trying to figure out a deal. How does it feel to attend as a negotiator?

For people attending the COP, it’s a once-a-year event that you can prepare for mentally and physically. It is stressful, but it’s not an unusual form of stress. Is the stress combined with a certain degree of hope because it’s also one of the events where potential solutions are made, right? Yeah. I am always optimistic that we’ll find a consensus at the end of the day.

The challenge is making sure that you keep your eye on the longer game because there is a kind of a false sense of finality and solution that you get from working on a process that meets and produces some form of outcome year-on-year. And you always have to keep a longer view on whether all of this is adding up to something that is solving the problem or at least contributing to a solution to the problem. There’s always hope, but there are two levels of hope: one is, are you going to close the deal with this particular COP? The other is, do all these COPs actually add up to something that is going to have an effect on the climate challenge?

Many people are quite critical of what COP has turned into. This was the biggest COP so far, with many civil society and youth advocates but also with a large group of business and fossil fuel representatives. Do you think it’s worth trying to be inclusive, or has COP outgrown its purpose? 

It’s very hard to have, as an individual, a full experience of an event that size. For me, as a negotiator, the presence of tens of thousands of others there doesn’t affect my day-to-day work, but it does attract leaders and helps with the overall zeitgeist of the meeting too.

I have heard a lot of concerns that a significant presence of business, in particular fossil fuel-related businesses, affects the outcomes. I don’t feel that in terms of my own day-to-day experience. I’ve never had them even approach me, or, more importantly, the politicians that come to the COP. On the other hand, we get approached by civil society and increasingly by youth groups for meetings all the time –and we grant them and hear directly from the youth constituencies about their hopes and disappointments. On balance, I think the inclusiveness of the process works more towards providing an opportunity for access to civil society at large than to businesses in particular.

That is encouraging to hear. Before you started working for the EU, you went to law school in the US. I understand that after graduation, your first job in climate policy was actually being involved in climate negotiations on the other side of the table, for Vanuatu?

Yes, that’s right. My first job after law school was an internship with an NGO in London called FIELD, the Foundation for International Environmental Law and Development. We had a series of grants from U.S. foundations to provide free legal assistance to small island developing states that didn’t have at that stage [the early 1990s] a lot of capacity to negotiate. After the internship, I went back to the U.S. to work for a law firm and brought FIELD on as my pro-bono client. Not long after that, I returned to FIELD full-time for nearly ten years, working with the Alliance of Small Islands States (AOSIS) through the negotiations of the UNFCCC, the Kyoto Protocol, and the Marrakech Accords.

This is also the time when people first started engaging with loss and damage. Did loss and damage play a role when you were doing pro bono work for Vanuatu? 

In the early years, the theme of “loss and damage” was played in in different ways than today. At first, we were designing a framework convention, and we were trying to ensure as much as possible that that convention addressed the needs of small islands. We began by scanning existing international agreements to see whether there were any functions that we thought could help. One idea was for some kind of insurance arrangement in which those that were contributing to an environmental risk would set aside resources in circumstances where that risk led to harm to the environment. One of the models we looked at was from the IMO, where there is an international fund for marine pollution [the International Oil Pollution Compensation Fund] that collects money from receivers of crude oil from shipping companies and sets it aside in a fund. In circumstances where there was an oil spill from a ship, the fund pays out to fix the spill and, in theory, to compensate victims. 

On the basis of that, we came up with this proposal for a funding facility that would perform a similar function, that would take resources from rich countries emitting greenhouse gases and make them available for small island states that were experiencing the impacts of sea level rise. I believe this was the first time a proposal from a group of governments referred to “loss and damage” as a concept related to climate change. But the concept then took on a life of its own in the years that followed. This is the reason why the word “insurance” is in the framework convention because that idea got boiled down into one word and ended up in the convention text. 

Some of the small island negotiators say that they have been demanding a fund for loss and damage for the past 30 years and haven’t been given it. I think that that’s not 100% accurate because in the intervening years since the proposal was first made, addressing loss and damage was not an AOSIS priority. What they were rightly concerned about in the early years of the negotiations was a focus on cutting emissions. That’s really what we wanted the regime to do. That’s why at the very first meeting of the Conference of the Parties in 1995, it was AOSIS that tabled the proposal for a protocol to the Convention introducing legally binding specific targets for developed countries to cut their emissions. This proposal provided the basis for the 1997 Kyoto Protocol.

So even though loss and damage were not the main focus back then, it has accompanied you throughout. Was the fund something you were waiting for? Is it also a personal success that some sort of agreement now came through? 

I don’t really see it in personal terms, but any satisfaction about a new funding arrangement is counter-balanced by my disappointment that we haven’t been able to cut emissions fast enough. I can’t see it in any other terms than that we find ourselves in a situation where emissions and temperatures have continued to rise, and the only thing in the science that has surprised us is that the impacts seem to be happening even under 1.1 and 1.2 degrees at a level that’s going to be difficult to manage.

I am glad to see the amount of empathy that the establishment of the funding arrangements reflects and the potential to feed that empathy back into the countries that are causing the problem in a way that leads to the mobilization of much, much more funding than we’ve seen in the past. My hope now is that this isn’t just a political compromise reached in order to ensure that a COP doesn’t fail but that it reflects a message of solidarity and empathy. However, I don’t think that whatever additional empathy the new funding arrangements might generate will close the gap between needs and resources.

I don’t think that this is going to lead to a regime of liability and compensation in which any harm that’s experienced by a developing country will generate money to make that country whole again –to literally compensate a developing country for the impacts of climate change. To me, that vision isn’t one that will or could be realised. I just don’t think that the politics –however much they might generate more empathy and sympathy and solidarity– will ever allow for that kind of literal compensation to take place. The issue of climate change is far more complicated than a mechanical logic of harm caused, therefore, victims compensated. 

My impression was that the runup that led to the adaption of the L&D agreement was not smooth at all. Germany spearheaded the Global Shield initiative, an insurance scheme many observers perceived to be an appeasement attempt to offer anything but an L&D fund. Towards the end of week 2, the EU delegation threatened to walk out over the lack of progress on mitigation. Yet, in the end, there was a compromise even without progress on mitigation. Can you give us more insight into your negotiating strategy? 

The EU, including Germany, had all begun to see the problem of loss and damage as really quite a complex one. It wasn’t a simplistic dynamic of us pushing back on the fund as being the solution. But it really did emerge from us listening to the way in which different developing countries were expressing their needs.

For example, even within AOSIS, heavily indebted, middle-income Caribbean countries were concerned about the impacts of extreme weather and their need to access funding to rebuild their economies on affordable terms. They were looking for a form of debt relief, more access to grant resources, and more lenient borrowing terms from the World Bank and the IMF. On the other end of the spectrum, least developed countries like small island states in the South Pacific were more concerned about the loss of territory and the loss of cultural heritage, what we refer to now as non-economic losses resulting from slow onset events like sea level rise. With economies already significantly dependent upon and fully eligible for ODA, they were looking for more grant resources tailored to their specific needs. Two completely different sets of needs and for which different kinds of instruments would need to be designed to address them! And then you had all the countries in between that were looking for better access to early warning systems, more support for drought and desertification, etc.

The German G-7 Presidency proposal for a Global Shield came out of that thinking –that there are institutions out there that are doing work to address this variety of needs– on early warning systems that are already providing insurance for those that can’t afford it, insurance for the uninsured as form of development assistance that is targeted on certain kinds of vulnerability. Additionally, organisations like the World Food Programme provide absolutely essential help. The Global Shield became the leading example of a much more promising way of raising significant additional resources than simply creating a fund, calling it a “Loss and Damage Fund”, and then expecting it to just be able to raise money and deliver it effectively. 

The problem, going into COP27, was that the fund, as the G77 described it, was the kind of fund that would be least likely to raise any significant resources. It was a fund that was described as mobilising trillions of dollars exclusively from “developed countries” for which any “developing country” would be eligible, with the definition of what a developed or developing country would be drawn from the 1992 Framework Convention on Climate Change. And then the G77 went on to describe it as a fund that would be able to pay out massive amounts of money to any developing country, experiencing an impact of climate change within a 24 to 48-hour period, without any conditions attached to how the money would be spent. On that basis, I couldn’t think of a single donor that would have any interest in putting money into that fund. I just don’t live in a world in which that could be a political reality. But it was a solid G77 position that this fund be established at COP27, presenting a very high risk that without a compromise that included a fund, the COP would fail. 

And so that’s why the EU made the move towards the end of the second week of COP27 to say that “we realise that the political moment is now”. But if we have to, in principle, create a fund, and we could only do so under certain conditions, that fund would have to be part of an effort to strengthen the broader “mosaic” of funding arrangements –of the kind represented by the Global Shield. It had to focus on assisting the particularly vulnerable developing countries. It had to have at least the potential to raise money and resources from beyond the traditional donor group. And that would have to be part of a package that emerged from Sharm el-Sheikh that kept Glasgow’s focus on the need to cut emissions intact and developed, a decent mitigation work program to continue to focus on pre-2030 ambition. And I think that’s where we landed roughly at the end of Sharm. It’s not ideal from our point of view, but at least we think that those basic elements were met. 

Thank you for that insight. My impression was that within the G77, it was an easy step without great cost to demand an L&D fund –even for actors who are not really committed to climate action. What does that mean for the EU? Do you think we could think of what happened as, at some level, a strategic defeat? Have you effectively lost leverage over countries which are hard to move on mitigation? 

I don’t see the relationship between loss and damage and mitigation in quite those terms. I don’t think agreeing to a new funding arrangement for loss and damage either increases or decreases our ability to demand more emissions cuts from, for example, emerging economies like China and India. The issue around the politics of mitigation and loss and damage had more to do with our relationship with the progressive and the vulnerable developing countries, like the small island states, where an impression was created that they weren’t willing to fight hard alongside us on ambitious outcomes on mitigation, until and unless we agree to the establishment of a loss and damage fund.

I am not sure that that’s accurate. They were ploughing their political efforts into loss and damage in a very, very focused way, but I didn’t get the impression that they were willing to walk away from their own obvious self-interest in cutting emissions. I do think that there was a political deal made within the G77 that countries like China and Saudi Arabia and the other like-minded developing countries, which tend to be the kind of hard-liners in these negotiations, would support the small islands in asking for the fund as long as the fund was on terms that were acceptable to the like minded. I think it was a hard deal for the small islands to do because I don’t think that the G77 proposal on the fund design (which did not focus on the particularly vulnerable and would have limited the fund’s donor base) was ideal for their interests. But I understand why they did it because it was the united G77 that forced an outcome at COP27. 

Your EVP Timmermans has been vocal about wanting to integrate nations like China into the emissions reduction effort. Is there a level at which the L&D facility agreement does change EU approaches to the G77 by encouraging the most affected nations to demand that developing countries also need to step up?

I do think that the decision taken in Sharm is a step forward towards a more contemporary and accurate framing of who should be doing what now in terms of cutting emissions, but also in terms of contributing to climate finance, including climate finance for the loss and damage, because we did fight a good fight on this issue.

The loss and damage decision does not refer to developed countries at all in the context of funding or otherwise. It talks about particularly vulnerable developing countries being eligible for assistance, but it doesn’t talk about developed countries being the sole source of finance. That’s different from every other fund that we’ve established previously. That doesn’t mean that we’re going to easily broaden the donor base, and negotiations on the design of the new funding arrangements, including the fund, will still be a big challenge. I think that the most likely way forward is a much more informal broadening of the donor base rather than a specific decision that says, for example, China will now be treated as a developed country for the purposes of climate financing. This is an opportunity to recognise that China and other countries with similar profiles are already significant contributors to the “broader mosaic” of funding arrangements for loss and damage. China, for example, helps fund the World Food Programme and, through its bilateral assistance, provides a lot of post-disaster support. 

What I worry about is that, in the transitional committee, politics will end up focusing on the kind of two ends of a spectrum of those politics. On the one side, developing countries are going to continue to be obsessed about the fund, getting the fund designed and up-and-running within a year, and will not be as concerned about how the fund will actually add value to the mosaic that’s already out there. On the other end of the spectrum, some of the developed country members of the committee will focus exclusively on broadening the donor base. In the meantime, the real challenge is strengthening the mosaic of existing institutions. I fear that as global temperatures rise, that will be neglected.

I think the risk is less about over-complication and more about over-simplification. The better approach is to spend some time thinking about where the gaps are that a fund could fill. One of the things that could emerge would be a new fund that could be established to help address that particular problem, like working on non-economic loss –because we have already acknowledged that this is a gap and that there isn’t any institution out there currently that’s really addressing it.

Do you think one of the functions of COP 27 was the message that historical polluters, like the United States, have to start paying up in accordance to the damage done –because we’re starting to have mechanisms that tie them to the damage done?

I honestly don’t think so. I don’t think that the United States, or China for that matter, see the decision in Sharm as creating a political acceptance of a concept of liability, that they are now liable in political or legal terms for their emissions. The decision in Sharm does not create that expectation or strengthen the arguments around liability. It doesn’t say that the funding arrangements will be based on “compensation”, it says “assistance”. And in our understanding, that’s assistance –like humanitarian assistance and development assistance– based on the concept of solidarity and a sense of political responsibility of those that are better resourced and those that have emitted more, to help those that are not responsible for causing the problem and are experiencing the impacts. 

This discussion around liability will continue in the context of the efforts to request an advisory opinion from both the International Court of Justice as well as the International Tribunal for the Law of the Sea to try to get more legal precision around what are the states’ responsibilities in the context of climate change. I wish those efforts well. But I don’t think the decisions in Sharm change this. 

Can you connect the outcomes of COP 27 with developments in Brussels, like the agreement on CBAM and the move towards more investment in response to the US IRA, for us? Domestic support for the green transition might have negative effects on outside developing nations, which will struggle to compete in the subsidies race and will be faced with additional trade barriers. Might this lead to difficulty for climate diplomacy going forward?

For me, the relationship between COP 27 and CBAM is about how behind the curve the international politics are, or how ahead of the curve the European politics are. What the EU is going through now is a very open, transparent, and not always pretty experiment of what it means when a major economy takes a net zero commitment seriously. All the politics, all the trade-offs, all the sausage-making that is necessary to maintain that political commitment is just fully on display. 

More globally, there are industrial policies that are beginning to emerge now, a combination of trade and investment, including government subsidies in innovation and production and consumption, that policymakers are judging as necessary. It’s true that those economies that are in a position to be able to print more money while still keeping their balance of payments and inflation and other aspects of their economy under control have an advantage. They’ve got a tool that other jurisdictions don’t. That’s a tool that can be used responsibly or it can be used irresponsibly. And one of the differences between those two approaches, I think, is the extent to which economies that are subsidising their transition keep their markets open in such a way that allows others to benefit. We have not put in place domestic content requirements that say these benefits can only extend within our borders. While EU climate policies will have impacts on developing states, I think the key is that our markets remain fundamentally open.

Thank you very much for the insight! Finally, what are you looking forward to and what do you expect the future of climate diplomacy to be after the term of the current Commission?

What I’m really looking forward to, and maybe I’m being overly optimistic, is that the conversation of climate diplomacy becomes more and more about how you get to net zero. I think there’s a potential within the mitigation work program to do that. The agreement in Sharm invites much more sector-specific policy conversation around the how. And so that’s a much better place to be than one in which there is perfect peace and comfort because no one is doing anything. 

In terms of the next Commission, I hope that it will be one in which the European Green Deal and its next stages continue to be the core mandate in the way that they have for the first five years. The European Green Deal implies such a profound vision over a long period of time. A legally binding net zero by 2050, if it remains intact, which I hope and believe it will, will be one of the biggest lasting legacies of this Commission, because everything that will happen moving forward will be determined and bound by that. It absolutely has to be maintained in the next Commission, or we won’t get there.