The Principle of Differentiation : reflections and changes since the Paris Agreement

This article is written by Chrysa Alexandraki.

The principle of Common But Differentiated Responsibilities and Respective Capabilities (CBDRRC) is embodied in Art. 3.1 UNFCCC[1] as one of the core principles of the Convention. The CBDRRC principle resulted from the ‘application of equity in general international law’[2]and the rationale was to ‘enable negotiators to agree on an international legal framework for climate policy during the 1990s’[3]. The principle provides a dichotomous architecture characterizing the Convention and consists of two basic aspects:

  • All countries have a common responsibility to reduce their greenhouse gas (GHG) emissions in order to combat climate change.
  • However, not all States have the same responsibility. The principle sets a differentiation between developed countries (Annex I Parties) on the one hand which have contributed to the GHG emissions on a major scale since the industrial era and the developing countries (non-Annex I Parties) on the other hand still struggling to develop.

The issue of differentiation came as one of the main points of the climate negotiations in terms of who should be doing what and in what extent in order to reduce GHG emissions. The idea at the time of the establishment of the UNFCCC was to avoid that it falls down to the lowest common denominator, while everyone does as little as possible. In that respect, developed States that have a historical responsibility to the problem, have stronger responsibility to do something against it[4]. These countries have to take the lead, which means that they have to adapt measures for the reduction of the emissions and at the same time provide financial support to developing countries.

The commitments deriving from the CBDRRC under the UNFCCC refer to all States in total[5], as well as Annex I Parties[6] and Annex II Parties[7] separately, while there is a compromise according to which as long as developed countries do not effectively implement their commitments of providing financial resources to developing countries, the latter will not implement their commitments. Therefore, it’s all conditioned upon developed countries taking lead.[8]

In addition to the above, the Kyoto Protocol (KP) implemented quantifiable emissions and based its architecture on various forms of differentiation. Not only did it differentiate between Annex I and non- Annex I countries, but it also categorized States on the basis of implementation and commitment.[9] It has proved though to be insufficient in addressing climate change.[10]

The UNFCCC put the world into different boxes that may have been right in 1992, but they are not quite fitting to the current state of the world and especially the future one. What is noteworthy is that at present it is the developing countries that most emissions come from in their effort to develop. Therefore, the main concern related to this principle is whether developing States in a state of financially contributing in tackling climate change should share the pie with the developed States.[11]

The PA came to address such inadequacies deriving from the previous climate agenda not only in terms of mitigation, but also of adaptation and finance as prescribed under Art. 2 PA[12]. The main difference between the KP and the PA is that the latter differentiates not between Annex I and non-Annex I countries, but it does on the other hand differentiate between developed and developing States leaving space to the latter ones to become developed in the future and contribute more dynamically in the climate agenda.[13]

In particular, the PA agreement differentiates between different type of aspects, that is between ‘specific subsets of countries’[14], specific issues such as adaptation and finance and certain procedures.[15] More specifically, the CBDRRC principle is mentioned at the PA preamble, the aims of the agreement[16], mitigation[17], adaptation[18] and finance[19], whereas the differentiation between developed and developing countries is mentioned 14 times throughout the agreement and differentiation on certain issues of the agreement as well as Least Developed Countries (LDCs) and Small Island Developing States (SIDS) is mentioned 7 times.[20]  The above frequency and allocation signifies that the CBDRRC principle, even though maintained in the PA, it has been reshaped and interpreted in a more evolutionary way in order to cover a wide range of relations referring to both the relations between different categories of States, but also different conditions and procedures within the national circumstances of each State Party to the agreement.

Additionally, the submission of the Intended Nationally Determined Contributions (INDCs) which has already initiated before COP 21 also reflects the principle of differentiation. The main objective of the INDCs was to reflect ‘countries’ diverse circumstances and capacities, their historical and current greenhouse gas emissions, and their specific development needs, and would therefore set out different priorities and ambitions’.[21]  What is noteworthy after research conducted is that INDCs have proven to be ‘an instrument for self-differentiation in the context of the notion of CBDRRC’.[22] Indeed it has been found that almost 94% of the INDCs have a reference at the fairness and equity conceptions, while more than half the countries ‘do not mention the concept of historical responsibility’.[23] References to population growth and financial capacity in terms of the high costs for mitigation and adaptation are also increasing within the INDCs in an effort of States to ‘contextualise the fairness of their INDCs’.[24] States have also put a lot of burden on adaptation in their INDCs recognizing the need to adapt to climate change, whereas ‘differentiation in climate finance is undertaken in the context of CBDRRC, in particular the notions of “responsibility” and “capabilities”’.[25] To conclude with, the principle of CBDRRC has been advanced through the establishment of the INDCs and the way countries responded to this challenge by including not only the issue of mitigation, but also adaptation and finance, while ‘self-differentiation’ also evolved through INDCs beyond the “firewall” between Annex I and non-Annex I countries, without actually dissolving these Annexes’.[26]

As following from the above analysis, the PA has contributed in the interpretation of the CBDRRC principle by interpreting the principle in a more dynamic and flexible way. Even though it has restated the CBDRRC[27], it has also added a different wording from the ‘UNFCCC formula’.[28] The PA provided a more evolutionary phrasing and interpretation of the CBDRRC ‘depending on the place where it is mentioned and the subject matter’.[29] It has been highly ‘based on self-differentiation’[30], while it has also maintained the differentiation between different categories of countries by adding ‘other countries’[31] into the game and by opening the way for a promising future agenda.

About the Author : Chrysa Alexandraki is a qualified lawyer in Greece. She recently completed her LLM studies in Public International law at the University of Oslo and is specialized in International Environmental and Energy law. She’s currently working at the Greek Ministry of Foreign Affairs and a CliMates involved in the Nego-tracking Team, Energy Transition and Climate Finance research teams.

References : 
[1] According to Art. 3.1 UNFCCC ‘developed country Parties should take the lead in combating climate change’. [2] See footnote 1, p. 3. [3] Pieter Pauw, Steffen Bauer, Carmen Richerzhagen, Clara Brandi and Hanna Schmole, Different Perspectives on Differentiated Responsibilities: A State-of-the-Art Review of the Notion of Common but Differentiated Responsibilities in International Negotiations, Bonn 2014, p. 1. [4] Lei Liua, Tong Wub and Ying Huangc, An equity-based framework for defining national responsibilities in global climate change mitigation, Climate and Development, 2017 Vol. 9, No. 2, p. 158. [5] Art. 4.1 UNFCCC. [6] Developed States and States with economies in transition meaning the Eastern European States; Art. 4.2 UNFCCC, e.g. develop national policies and measures to mitigate climate change, take the lead and have particular reporting requirements. [7] OECD countries as the richest countries in the world such as Australia, US, Belgium, Canada, New Zealand, all the European countries, Japan, Switzerland’; Art. 4.3-4.6 UNFCCC, e.g. provide financial resources to developing countries for mitigation, assist developing countries in meeting adaptation costs and provide financial resources for adaptation, technology transfer and allow degree of flexibility which applies on carbon market. [8] Art. 4.7 UNFCCC. [9] Lavanya Rajamani, Differentiation in a 2015 Climate Agreement, Centre for Climate and Energy Solutions (June 2015), p. 2. [10] Kennedy Liti Mbeva  and Pieter Pauw, Self-differentiation of countries’ responsibilities : Addressing climate change through  Intended Nationally Determined Contributions (Bonn 2016), p. 7. [11] Zou Ji and Fu Sha, The challenges of the post-COP21 regime: interpreting CBDR in the INDC context, Int Environ Agreements (2015) 15, p. 422. [12] See footnote 10, p. 8. [13] Ibid. [14] Least developed countries (LDCs) and Small island developing States (SIDS). [15] See footnote 10, p. 9; e.g. timelines and the conducting of the global stock-taking to assess implementation of the Paris Agreement. [16] Art. 2 PA. [17] Art. 4 PA. [18] Art. 7 PA. [19] Art. 9 PA. [20] See footnote 10. [21] See footnote 10, p. 16. [22] Ibid, p. 17. [23] Ibid, p .19; for example Brazil, China, Indonesia, Saudi Arabia etc.. [24] Ibid. [25] Ibid, p. 20. [26] Ibid, p. 30. [27] Preamble and art. 2.2 PA. [28] Sandrine Maljean-Dubois, The Paris Agreement: A New Step in the Gradual Evolution of Differential Treatment in the Climate Regime?, RECIEL 25 (2) 2016, p. 153. [29] For instance arts. 4.1, 4.3, 4.4, 4.19, 13.1, 14.1 and 15.2. [30] Ibid, p. 154: ‘self-determination means no more differentiation for developing countries as a single group. But it results in more, not less, differentiation, as it allows for each country to be treated differently.’ [31] Art. 9.2 PA.

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