How has differentiation evolved from the UNFCCC to the Paris Agreement?
The evolution of differentiation from the UNFCCC to the Paris Agreement is briefly tracked below by comparing the approach under the UNFCCC and the Kyoto Protocol to the approach under the Paris Agreement.
- UNFCCC Approach to Differentiation
The approach to differentiation under the UNFCCC has been dominated by the Annexes, which served to separate Parties between those considered at the time to be developed countries, developing countries, and economies in transition. There have been few amendments to the Annexes since the entry into force of the UNFCCC in 1994. Other key elements of the UNFCCC approach to differentiation include the following:
- Reference to common but differentiated responsibility and respective capability (CBDR&RC) (Articles 3, 4)
- Reference to Developed Countries taking the lead in combating climate change (Article 3)
- Reference to special needs and circumstances of developing countries (Article 3)
- Reference to socio-economic contexts in deciding on policies and measures (Article 3)
- Reference to the need for economic and sustainable development (Article 3)
Within this context, the UNFCCC then established different sets of obligations for developed countries, developing countries and economies in transition. Economies in transition were largely treated as developed countries, but were granted some flexibility. Some developing countries, such as LDCs and SIDSs, were singled out for their particular vulnerability and need for assistance.
The Kyoto Protocol builds on this approach to differentiation. It creates more specific mitigation and funding obligations for developed countries and economies in transition than the UNFCCC. It creates a compliance system that was largely designed with developed country obligations in mind. It creates detailed accounting rules that focus on tracking developed country obligations. The terms Annex I and Non-Annex I Parties are most commonly used under the UNFCCC/Kyoto approach to create different rights and obligations for Parties.
- Paris Approach to Differentiation:
First, it is important to point out that the Paris Agreement is an agreement that has, for now, been adopted by way of a COP decision under the UNFCCC, and that is expected to formally enter into force as a legally binding agreement under the UNFCCC. This means that the two are linked, and that the Paris Agreement will be subservient to the UNFCCC, and that the provisions of the UNFCCC will have influence over the interpretation of provisions of the Paris Agreement. Importantly, the Annexes under the UNFCCC remain, as do the principles in Article 3.
Having said this, the Paris Agreement represents a significant shift away from the UNFCCC/Kyoto approach to differentiation. Most importantly, the Paris Agreement does not rely on or mention the Annexes of the UNFCCC. Rather, it uses the terms developed countries and developing countries in place of the terms Annex I Parties and Non-Annex I Parties. It does not offer a definition of developed or developing country Parties. The Annexes could be argued to be relevant to help define developed and developing countries, but this approach would likely be contested due to the concerted effort in the Paris Agreement to move away from the Annexes.
This new approach to differentiation between developed and developing countries offers both flexibility and uncertainty. It offers flexibility in the sense that no amendment to the Annexes is needed to take account of changing national circumstances. It adds uncertainty in that there is no clear mechanism for determining whether a Party is considered to be a developed or a developing country.
A second key change in the Paris Agreement is that, while collective goals are agreed upon, it is largely left to individual Parties to determine, through NDCs filed every 5 years, what contribution they will make to the collective goal. While there is a requirement to justify the fairness of the individual contribution, the approach to differentiation on emission reductions and on funding commitments is largely one of self-differentiation.
Another change in the approach to differentiation in the Paris Agreement is the addition of “national circumstances” to CBDR&RC. The additional language is not defined, adding uncertainty and creating a potentially wide-open range of circumstances that may be used to justify differential treatment. What is clear is that differentiation under the Paris Agreement includes the following three elements:
- National circumstances
In addition to these general provisions for differentiation in the Paris Agreement, there is issue- specific differentiation throughout the agreement. Differentiation is usually based on the distinction between developed and developing countries, and in some cases based on the special needs and circumstances of LDCs and SIDSs.
With respect to mitigation, self-differentiation is the dominant feature. There is some differentiation between developed and developing countries with respect to expectations for economy-wide emission reduction targets, and a general recognition that developing countries require support to implement their mitigation contributions.
On Adaptation, the Paris Agreement commits developed countries to mobilize increased adaptation finance for developing countries. On Finance, funding from developed countries is mandatory, while funding from developing countries is voluntary. Furthermore, the special needs of LDCs and SIDS with respect to funding is recognized.
On Transparency and compliance, the Paris Agreement offers some flexibility for all developing countries, and special flexibility for LDCs and SIDS.