1. Can you provide an interpretation of the term “will” in Article 2.2 (the Agreement ‘will reflect equity and CBDRRC’)? How, if at all, does it impact on the implementation of the Agreement’s operational parts?
2. Since 2.2 does not use operational language, to what extent does the principle of CBDRRC none the less frame and guide the implementation of the other operational provisions of the Paris Agreement (PA)?
Advice:
Article 2.2 reads: “This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”
Both Article 2.2. PA and Article 3.1 UNFCCC refer to equity and CBDRRC but may not be regarded as ‘operative provisions’ in either treaty. Articles like these typically provide guidance on how to interpret and implement obligations embedded in a treaty. If anything, the reference to equity and CBDRRC is more forcefully termed in the PA (Article 2.2 uses the term ‘will’) than in the UNFCCC (Article 3.1 uses the term ‘should’).
According to the academic literature surrounding the interpretation of the Paris Agreement the auxiliary ‘will’ implies a promise or expectation, not an obligation. It reflects the fact that the parties did not create a mandatory regime ( ‘shall’ would have been used). So while it does not create obligations for individual parties, it – because there is not a subject in Article 2.2 – the provision appears to create general institutional obligations for the regime as a whole.
Thus Art. 2.2 turns equity into a paradigm for Parties’ action under the PA, thus providing an element of continuity with the UNFCCC. So, very much like that in Article 3.1, the guidance in Article 2.2 is crucial both for Parties’ implementation of the operational provisions in the PA, as well as for the related rule-making processes. So when Parties draft rules for the implementation of the operational provisions of the PA – which they are in the process of doing now – such rules should be drafted with equity in mind and with a view to engender equitable outcomes. Equally, when Parties implement their obligations under the PA, they should do so with a view to engender and secure equity.
The CBDRRC principle has so far been the core distributive paradigm and the main means to operationalise equity in the climate regime. In international treaties, differential treatment is typically embedded in (1) the central obligations of the treaty; (2) provisions on assistance in the form of capacity building, financial resources, and transfer of technology; and (3) provisions concerning implementation, for instance, phased-in compliance and delayed reporting schedules. Obligations under the UNFCCC and the Kyoto Protocol (KP) provide examples of all three types of differentiation.
What has changed with the PA, when compared with the UNFCCC and the KP, is Parties’ understanding of how differentiation should operate. While the UNFCCC and the KP took a ‘bifurcated’ approach to differentiation, the PA does not necessarily follow the same approach. Article 2.2 PA makes it clear that Parties obligations under the PA will be implemented differently.
The issue, therefore, is not whether there is going to be differentiation, but how this will work in practice, in relation to the three elements highlighted above. The PA provides some clues on this: for example in relation to mitigation (Article 4.4), which may be regarded as one of the core obligations under the treaty. The drafting of the PA rulebook now confronts Parties with decisions over the details of implementation of this and similar obligations. In other words, Parties have to decide how differentiation will work under the PA. Various options can be envisioned and have been put forward in the past.
What is clear is that Article 2.2 requires Parties to use equity as a compass as they attend to these crucial decisions. One could for example argue that, LDCs should enjoy a period of grace, or at least, attenuated obligations in relation to mitigation, etc.