The Paris Agreement: A New Step in the Gradual Evolution of Differential Treatment in the Climate Regime?

• Published date: 01 July 2016
• Author: Sandrine Maljean‐Dubois
• Date: 01 July 2016
• DOI: http://doi.org/10.1111/reel.12162

The Paris Agreement: A New Step in the Gradual

Evolution of Differential Treatment in the Climate

Regime?

Sandrine Maljean-Dubois*

Among international environmental agreements, the

early climate regime gave the best illustration of the

principle of common but differentiated responsibilities.

The principle has been frequently invoked in the deli-

cate negotiations on the future climate regime, and its

role has gradually evolved. The 2010 Canc

un Agree-

ments promoted a type of self-differentiation which

tended to blur the distinction between developing and

developed countries. In the post-2020 negotiations, the

notion of intended nationally determined contribu-

tions to be communicated by each party took this

approach further. However, differentiation was still at

the core of discussions. The Paris Agreement repre-

sents a f‌ine balance between the requirements of dif-

ferentiation and ambition. Differentiation has grown

both in f‌lexibility and adaptability. The Agreement

marks a decisive step forward in the gradual blurring

of country categories, and better takes into account

diverse national circumstances, capabilities and vul-

nerabilities, all of which are by their very nature

changing over time.

INTRODUCTION

Traditionally, international law is based on the sover-

eign equality of States. Being equally sovereign, all

States have equal rights and obligations. That is why

in most cases ‘uniform terms remain the rule’.

1

How-

ever, following decolonization, international economic

law and international environmental law have applied

differential treatment to different categories of States.

Differential treatment ‘seeks to foster a form of sub-

stantive equality which cannot be achieved through

reliance on sovereign equality in a world where states

are unequal in many respects’.

2

The 1992 Rio Declar-

ation recognized in its Principle 7 the common but

differentiated responsibilities (CBDR) of States. This

principle has since been given increasing recognition

in the domain of international environmental law,

3

with the early climate regime giving the best illustra-

tion of the principle.

The principle of common but differentiated responsi-

bilities and respective capabilities (CBDRRC) is

strongly embedded in the climate regime. It plays a

structural role in the 1992 United Nations Framework

Convention on Climate Change (UNFCCC)

4

as well as

in the 1997 Kyoto Protocol.

5

These two treaties differ-

entiate between ‘developed’and ‘developing’countries

because of the historical contributions of developed

countries to climate change and their greater capacity

to implement strong mitigation policies. Accordingly,

in the Convention, developed countries (listed in Annex

I) have stronger obligations than developing countries

(non-Annex I countries). Developed countries and

other parties included in Annex II also should provide

new and additional f‌inancial resources to developing

countries, and promote, facilitate and f‌inance the

transfer of, or access to, environmentally sound tech-

nologies and skills to developing country parties.

Developing countries also benef‌it from a softer compli-

ance regime. The implementation of the Convention by

developing countries will depend on the effective

implementation by developed countries of their com-

mitments related to f‌inancial resources and transfer of

technology, considering that ‘economic and social

development and poverty eradication are the f‌irst and

overriding priorities of the developing country and Par-

ties’.

6

The Kyoto Protocol cements this binary under-

standing of differentiation. It imposes quantif‌ied

emission limitation and reduction commitments only

on developed countries listed in its Annex B. One of the

major reasons provided by the United States for not

joining the Kyoto Protocol was exactly this bifurcation

* Corresponding author.

Email: s.maljean-dubois@univ-amu.fr

1

C.D. Stone, ‘Common but Differentiated Responsibilities in Interna-

tional Law’, 98:2 American Journal of International Law (2004), 276.

2

R. Maguire, ‘The Role of Common but Differentiated Responsibility

in the 2020 Climate Regime: Evolving a New Understanding of Differ-

ential Commitments’, 7:4 Carbon and Climate Law Review (2013),

260.

3

Rio Declaration on Environment and Development, found in: Report

of the UN Conference on Environment and Development (UN Doc.

A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992), Annex, Principle 7.

4

United Nations Framework Convention on Climate Change (New

York, 9 May 1992; in force 21 March 1994) (‘UNFCCC’).

5

Kyoto Protocol to the United Nations Framework Convention on Cli-

mate Change (Kyoto, 11 December 1997; in force 16 February 2005).

6

UNFCCC, n. 4 above, Article 4.7.

ª2016 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

151

RECIEL 25 (2) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12162

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