Background: based on the latest Nationally Determined Contributions (“NDCs”) submitted by parties in 2020/2021 in the context of the first NDC update milestone, it is very likely that the 1.5C temperature goal of the PA will be exceeded by the end of the century. For some parties and independent organisations, this is caused in part by the fact that some NDCs do not reflect the principle of equity due to the failure to operationalise it in the PA regime. In addition, the parties have so far failed to form consensus around individual assessments of the ambition and adequacy of NDCs.
Introduction: The principle of equity
The principle of equity, whilst never defined institutionally, is often seen as going hand-in-hand with that of common but differentiated responsibilities and respective capabilities. Both principles are included in the UN Framework Convention on Climate Change (UNFCCC) and also firmly anchored in the Paris Agreement, both in its preamble and operative part. Together, they promote the concept that responsibilities for tackling climate change must be delineated amongst countries based on their level of economic development and their historical greenhouse gas footprint. The basic premise is that developed countries should take the lead in reducing emissions and supporting both mitigation and adaptation efforts in developing countries, with developing country participation being largely contingent on such support.
Equity therefore serves as a key element of effective international climate policy, and it is widely accepted that consideration of the equity principle is essential for the establishment of a successful global climate change regime. The underlying basis of this being that greater cooperation will only emerge if the elements of such a climate change regime are perceived to be fair. 
There are, however, significant barriers to implementation of the principle, with no unified interpretation of how it should be enacted practically. On that basis, significant academic work has been conducted to convert the principle into a form that is applicable and transparent, for example through considering distribution of mitigation costs depending on a state’s financial capacity. In reality though, Parties have often viewed what is ‘equitable’ from a self-interest perspective resulting in little cohesion in how such principle could be practically applied. As noted by one academic, “the current approach to equity has become a tug-of-war between countries that are reluctant to make greater climate change action commitments without assurances that others will also act”.
Query (a): What entry points could there be to operationalise equity within the ‘1st Global Stocktake’ of the Paris Agreement and/or the ‘Work Programme for urgently scaling up mitigation ambition and implementation’ referred to in paragraph 27 of decision 1/CMA.3?
The 1st Global Stocktake
Article 14.1 of the Paris Agreement concerns the global stocktake, which is designed to ensure a global oversight of collective progress towards the long-term goals, with equity providing context.
Article 14.1 provides that the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (“CMA”) “shall periodically take stock of the implementation of this Agreement to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals… It shall do so in a comprehensive and facilitative manner, considering mitigation, adaptation and the means of implementation and support, and in the light of equity and the best available science.”
The wording in the Paris Agreement seems to leave little doubt that the drafters envisioned that, if a shortage exists in the level of ambition, this should be addressed in the light of equity. Helpfully, several assessments of the equity implications of the mitigation commitments or policies of major emitting countries already exist. One of the most widely cited is: www.Paris-equity-check.org. These databases and the related methodologies could be adopted and adjusted by Parties, as they see fit, in the context of the elaboration of rules concerning the global stocktake.
The focus on equity within the global stocktake was reinforced by the Decision concerning ‘Matters relating to Article 14 of the Paris Agreement and paragraphs 99–101 of decision 1/CP.21’ This discusses the modalities for the global stocktake and provides the following entry points to operationalise the principle of equity:
- Paragraph 2 (an overarching element) notes that “equity and the best available science will be considered in a Party-driven and cross-cutting manner, throughout the global stocktake”.
- The Decision sets out that the sources of input for the global stocktake will consider information at a collective level including information on “fairness considerations, including equity as communicated by Parties in their nationally determined contributions”.
This makes it clear that, whilst it is up to countries to determine the level of ambition of their Nationally Determined Contributions (“NDCs”), they must still be ‘fair’ and in line with equity.
- The expert consideration of inputs will include equity considerations (para.5).
- The technical assessment phase will take into account equity (para.27), as will the summary reports by the co-facilitators (para.31).
- The outputs of the components of the global stocktake “should summarize opportunities and challenges for enhancing action and support in the light of equity.” (para.13).
The above rules signal a clear intention that equity considerations should guide all three phases of the stocktake. How to measure equity and fairness is still subject to different interpretations, however. Thus, one of the guiding questions of the second meeting of the Technical Dialogue held at COP27 aimed at developing a shared and improved understanding of equity, based on the best available science, when considering mitigation ambition and action.
The Paris Agreement
In addition to Article 14.1 and the relevant provisions of Decision 19/CMA.1, other relevant entry points within the Paris Agreement are as follows:
- Article 2.2 states that “[t]his Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capacities in the light of different national circumstances”. The provision therefore provides that when Parties draft rules for the implementation of the Paris Agreement, 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 Paris Agreement, they should do so with a view to engender and secure equity.
- Article 4.1, in discussing the long-term goal for mitigation, states that “[i]n order to achieve the long-term goal …, Parties aim to reach global peaking of GHG as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of GHG in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.” This provision is key in showing that equity is intended not only to underpin the Paris Agreement in general terms but also specifically to inform national contributions.
- Articles 6.8 and 6.9 define a “framework for non-market approaches” to promote mitigation and adaptation ambition, enhance public and private sector participation in the implementation of NDCs and “enable opportunities for coordination across instruments and relevant institutional arrangements”. Such framework may be used as an opportunity to insert global equity and fairness-based ideas into the international decision-making process.
- Article 13.5 provides that “the purpose of the framework for transparency of action is to provide a clear understanding of climate change action in the light of the objective of the Convention as set out in Article 2, including clarity and tracking of progress towards achieving Parties’ individual NDCs under Article 4… to inform the global stocktake under Article 14”. The transparency framework’s overall objective is therefore to create a fair and impartial process under which Parties’ efforts are open to a certain degree of scrutiny with equity used as a compass for negotiations.
- Article 24 enables mechanisms for dispute resolution including negotiation or any other peaceful means of dispute resolution followed by compulsory conciliation, and recourse to the International Court of Justice or arbitration. If Parties disagree about the implications of equity on the interpretation of and compliance with their commitments under the Paris Agreement, one Party could approach another Party to resolve the dispute through such mechanisms. In practice, however, the Agreement provides few options to resolve disputes.
For further detail regarding entry points in the Paris Agreement reflecting the principle of equity, please see the LRI’s advice note ‘Equity in the Paris Agreement’, accessible here: https://legalresponse.org/legaladvice/equity-in-the-paris-agreement/.
The Work Programme
As regards the ‘work programme for urgently scaling up mitigation ambition and implementation referred to in paragraph 27 of decision 1/CMA.3’ (“Work Programme”), the proposal concerning matters relating to the Work Programme (“Proposal”) recalls the Paris Agreement more generally, and thus incorporates the principle of equity as discussed above.
In particular, the Proposal recalls Articles 4.4 and 4.5 of the Paris Agreement, which provide that developed country Parties should take the lead by undertaking economy-wide absolute emission reduction targets and that support shall be provided to developing country Parties for the implementation of mitigation targets.
Whilst the Proposal therefore does not explicitly refer to ‘equity’ or ‘fairness’, recognition of the need to allocate responsibility in accordance with the terms of Article 4 of the Paris Agreement necessitates giving attention to considerations of equity when implementing the Work Programme.
The scope of the Work Programme, as envisaged in paragraph 4 of Decision -/CMA.4, is broad: it should be “based on broad thematic areas relevant to urgently scaling up mitigation ambition and implementation and include (…) and relevant enabling conditions, technologies, just transitions and cross-cutting issues;” This broad framing and the reference to just transitions and cross-cutting issues arguably leaves the door open to including equity and fairness considerations in its implementation.
Query (b): Could there be scope to individually assess equity in NDCs, and if so, how?
In general, there appears to be limited scope for any substantive assessment of individual NDCs to be conducted by bodies established under the Paris Agreement or as part of the Paris Agreement’s formal review and transparency mechanisms.
Not only is there no body or mechanism that is expressly mandated to carry out individual assessments of NDCs, but, in the case of the Enhanced Transparency Framework (“ETF”), global stocktake and compliance mechanism, the Parties have adopted rules that explicitly rule out the possibility of any such evaluation taking place. The guidance under the ETF, for example, clearly states that the technical expert review teams will not assess the adequacy or appropriateness of a Party’s NDC. The absence of any such review mechanism from the Paris Agreement is not accidental; rather it reflects a reluctance on the part of a number of Parties to have the substance of their individual NDCs subjected to formal external assessment.
For similar reasons, it appears unlikely that intergovernmental bodies that exist independently of the Paris Agreement, such as the United Nations Environment Programme (“UNEP”), would in the foreseeable future be permitted to expand their mandate to conduct individual assessments of NDCs.
The most promising avenue for the individual assessment of NDCs appears to be independent evaluations by academics and non-governmental organisations (“NGOs”). Although such assessments are less authoritative than a formal review conducted under the auspices of the Paris Agreement, there are a number of examples of rigorous and comprehensive evaluations carried out by individuals and organisations with high levels of technical expertise.
These assessments consider factors such as countries’ responsibility for past emissions, their economic capability to reduce emissions, equality in terms of per-capita emissions targets, and the cost efficiency of available emission reduction techniques. Just as the findings of organisations such as Human Rights Watch garner substantial public attention and can indirectly influence the actions of governments in the human rights sphere, there is potential for the analyses and opinions of certain climate change organisations to carry significant weight in the minds of the global public. This may in turn impact the decision-making of governments when revising their NDCs.
Moreover, while the Paris Agreement itself does not provide for individual NDC assessments, the information and analyses that Parties are obliged to provide through mechanisms such as the global stocktake and ETF will assist academics and NGOs to produce accurate NDC assessments that reflect the newest and most reliable data.
For further detail regarding individual assessment of equity in NDCs, please see the LRI’s advice note ‘Assessing adequacy of NDCs’, accessible here: https://legalresponse.org/legaladvice/assessing-adequacy-of-ndcs-2/
Query (c): Can you suggest any processes or arrangements (such as an indication from the CMA) to include the equity principle when Parties set out and update their NDCs?
The CMA plays an important role in overseeing the implementation of the Paris Agreement and in taking decisions to promote its effective implementation. As such, a CMA Decision provides a key avenue through which issues of equity can be addressed.
In adopting the Paris Agreement, the Parties agreed, by way of CMA Decision, that the information they would provide when communicating their NDCs “may” include, inter alia, “how the Party considers that its nationally determined contribution is fair and ambitious, in the light of its national circumstances, and how it contributes towards achieving the objective of the Convention”, and “fairness considerations, including reflecting on equity”.
The first point to note is that, as per Decision 4/CMA.1, it is not obligatory for the Parties to detail how they address equity in their NDCs. Parties who do provide such information have done so generally only at a high-level and with reference to the 1.5C target. So, for example, the EU in responding to the question of how it has accounted for “fairness considerations, including reflecting on equity”, stated as follows:
“The IPCC Special Report on global warming of 1.5°C shows that pathways limiting warming to 1.5°C typically achieve net zero greenhouse gas emissions at global level in the second half of this century. This enhanced NDC is in line with the EU’s agreed objective of achieving a climate-neutral EU by 2050. The EU therefore considers the enhanced NDC to be a fair contribution towards the global temperature goal of the Paris Agreement.”
Similarly, the US stated, “The United States’ NDC exceeds a straight-line path to achieve net-zero emissions, economy-wide, by no later than 2050. It also promotes the goal of keeping within reach a 1.5 degree Celsius limit on global average temperature increase.”
Brazil’s NDC places greater emphasis on the need for accurate “estimation of the relative share of the temperature increase attributable to each individual country” such that “the marginal relative contribution to the global average surface temperature increase is a relevant measure for evaluating the level of each party’s responsibility in the collective effort to “[h]olding the increase in the global average temperature to well below 2°C above preindustrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels””.
The above shows that equity has been discussed in NDCs only in broad-brushed terms, if at all. If equity is to be addressed in a meaningful way, future CMA Decisions should seek to: (a) make the inclusion of equity considerations in NDCs a mandatory obligation; and (b) require a higher level of detail from Parties when explaining how their NDCs align with the principle of equity. Further, signals for urgent action to Parties and stakeholders by the CMA can prove to be important drivers of action, as they “indicate likely policy trajectories to business, investors and other actors operating at all levels of governance.”
General statements alone however are unlikely to be sufficient. For the CMA to develop concrete recommendations it must both support and be supported by mechanisms such as technical discussions, working groups and facilitative dialogues in order to produce clear guidance. These mechanisms are discussed in further detail below.
In making its decisions, the CMA is reliant on draft decisions and recommendations from the subsidiary bodies, which are then debated and discussed by Parties at the COP. In turn, the subsidiary bodies may depend on inputs and advice as provided by an established work programme.
An example of this can be seen in the Ad Hoc Working Group on the Paris Agreement (“Ad Hoc Working Group”) as established by Decision 1/CP.21, the same Decision by which the COP adopted the Paris Agreement.
The Ad Hoc Working Group was mandated to develop draft decisions to be recommended to the CMA for consideration and adoption at its first session. In particular, the Ad Hoc Working Group was requested to provide guidance on, amongst other things, “features of the nationally determined contributions for consideration and adoption by the Conference of the Parties”. This includes guidance for accounting for NDCs, which ensures that Parties account for anthropogenic emissions and removals in accordance with methodologies assessed by the International Panel on Climate Change (“IPCC”).
The Ad Hoc Working Group was also tasked to identify the sources of input for the global stocktake which culminated, as noted above, in the incorporation of “fairness considerations including equity”.
At each session of the Ad Hoc Working Group, Parties were invited to submit written inputs and share opinions, which were then considered and incorporated into the Working Group’s final output.
The Ad Hoc Working Group was therefore key in ensuring initial considerations by Parties of equity in their NDCs. Through their representation at COP, Parties can petition the COP for the establishment of a subsequent working group, set up specifically with the goal of preparing guidance for Parties on how to address equity in their revised NDCs. This would act as an influential means by which Parties may engage more substantively with issues of equity. Such guidance may take the form of a framework for addressing equity developed by the working group itself benefitting from the Parties’ input as well as scientific advice as outlined below.
As noted earlier, current considerations of fairness and equity in NDCs, prompted by CMA Decisions, have often been articulated in vague terms with minimal supporting detail or analysis.
Having technically focused guidance which: (a) highlights the importance of incorporating principles of equity; and (b) outlines a methodology within which a more detailed analysis of equity can be considered in NDCs can drive and focus discussions on the topic of equity.
Methods of achieving this include requests for additional scientific advice by the IPCC or other bodies or the creation of a new group of experts (independent from Parties) mandated to consider incorporation of equity in NDCs. Such a group could look at all the different interpretations of the equity principle and suggest benchmarks for emission reductions against which countries’ actions could be assessed.
The IPCC reports in particular have consistently triggered progress in climate negotiations and as such provide an authoritative and persuasive forum through which pressure can be applied on Parties to tackle issues of equity in their NDCs. Whilst the focus of IPCC assessment reports is established through IPCC determined working groups, the IPCC also frequently produces shorter, special reports and technical papers on specific issues at the request of the COP or the SBTSA. Requests from the COP have also previously included events between Parties and IPCC representatives allowing for the open exchange of views concerning IPCC assessments.
Having said this, it should be noted that introducing a ‘one-size-fits-all’ form of technical guidance is unlikely to be appropriate given the highly specific and contextual nature of considerations of equity. Parties, armed with scientific advice, may benefit from a more discursive route, which provides flexibility for Parties to determine their own approach whilst still focusing attention on the principle of equity. Scientific advice should therefore be incorporated into dialogues between the Parties to facilitate productive discussions around equity.
Systems by which Parties are held accountable for enacting terms of the Paris Agreement can be tailored to focus on incorporating equity into NDCs. One example is the ‘facilitative, multilateral consideration of progress’ (“FMCP”), which takes place following the publication of a Party’s technical expert review report in which Parties are encouraged to submit questions to each other. The scope of the FMCPs may be expanded to include questioning of Parties’ equity considerations thus providing an avenue by which Parties can discuss the incorporation of equity in their NDCs. Whether this would be politically palatable remains to be seen, however, given the resistance to reviewing the adequacy of Party’s NDCs.
Alongside this mechanism is the Paris Agreement Implementation and Compliance Committee (“Committee”), the procedures and modalities for which were adopted by the CMA in Decision 20/CMA.1 at Katowice in 2018.
In accordance with Article 15(1) of the Paris Agreement, the Committee’s mandate is to “facilitate implementation of and promote compliance with provisions of [the] agreement”. The compliance mechanism “shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive”. The modalities appear to only envisage action by the Committee where a Party has failed to communicate an NDC. However, expansion of the mandate of the Committee could enable examination of Parties’ NDCs as regards the principle of equity and subsequent consideration by the Committee where the principle has not been sufficiently addressed, thus promoting focus on equity when updating NDCs.
Caution should be had however, when utilising such accountability mechanisms. Considerations of equity are highly contentious. Parties may be reluctant to create or expand existing mandates to engage in a process which, on the face of it, seeks to criticise another Party for lacking focus on equity in its NDC.
The Global Stocktake
The global stocktake itself presents a form of accountability mechanism by which equity can be addressed. The purpose of the global stocktake is to create a tool that informs countries’ climate commitments, as set out in their NDCs, on issues related to mitigation, adaptation and finance, as well as cross-cutting issues of equity. As noted above, the global stocktake should be conducted “in light of equity and the best available science”.
The global stocktake is intended to be a participatory process and consists of three main phases:
- Data collection – country reports, submissions and scientific findings are collected;
- Technical assessment – series of in-person dialogues to review information received; and
- Consideration of outputs – countries discuss findings and implications and use technical findings to step up national climate action.
The submission deadline for the first phase is February 2023. Inputs will be received from the UNFCCC and the IPCC as well as Parties, international organizations and non-Party stakeholders. Overlapping with this are the technical assessments, which started in Bonn in 2022 and will continue until mid-2023.
It is important that when submitting their inputs, Parties raise the issue of equity at these preliminary phases for the topic to be meaningfully addressed at phase 3. This phase is intended to identify opportunities, challenges, possible measures and best practices which can then be referenced in a CMA Decision (there is no requirement to formally integrate the key messages of the stocktake in a decision). This will therefore inform Parties’ next set of NDCs and as such will be critical to ensuring impact.
It is worth noting that the global stocktake is a novel mechanism under the UNFCCC and as such regular CMA guidance is likely needed to ensure that the global stocktake process evolves and strengthens over time, and in particular that equity features as a central part of the process.
In reality, there is no single process by which equity can be addressed and rather the issue of equity should be raised across several forums to drive pressure and focus discussions when Parties come to revising their NDCs.
To date, equity has been seen as a contentious topic, which has barred real development towards enactment. Emphasis on a discursive and supportive approach, potentially through a facilitative dialogue is arguably the most likely to yield the best results, following which Parties can seek to support and formalise the outputs of such dialogue by way of technical guidance and CMA decisions.
Ultimately then and crucial for turning thought into action will be the role of the UNFCCC, through its bodies, namely the CMA. Whilst the UNFCCC has institutionalised equity in treaty language, arguably much more work needs to be done to implement the principle practically. Critical for this will be the shifting role of the UNFCCC from, primarily, a platform for international treaty negotiations to one that supports and monitors implementation.
 ‘Balancing Equity and Effectiveness’, NYU Environmental Law Journal, May 2019.
 References to ‘Parties’ or ‘Party’ means State Parties to the Paris Agreement.
 ‘What is Equity in the Context of Climate Negotiations?’, World Resources Institute, 14 December 2012.
 ‘Equity in the Paris Agreement’, LRI, 17 January 2018, https://legalresponse.org/legaladvice/equity-in-the-paris-agreement/
 Decision 19/CMA.1, paragraph 2.
 Decision 19/CMA.1, paragraph 36(h).
 ‘Equity in the Paris Agreement’, LRI, 17 January 2018, https://legalresponse.org/legaladvice/equity-in-the-paris-agreement/
 E.g. given that very few Parties have accepted compulsory jurisdiction of the International Court of Justice or compulsory arbitration specifically within the context of the UNFCCC, and that additional procedures relating to conciliation have not been adopted to date.
 ‘Matters relating to the work programme for urgently scaling up mitigation ambition and implementation referred to in paragraph 27 of decision 1/CMA.3.’ Decision -/CMA.4, https://unfccc.int/documents/622219
 ‘Assessing adequacy of NDCs’, LRI, 1 April 2021, https://legalresponse.org/legaladvice/assessing-adequacy-of-ndcs-2/
 The COP acts as the supreme-decision making body for the United Nations Framework Convention on Climate Change Conference (“UNFCCC”). The COP also serves as the meeting of the Parties to the Paris Agreement (“CMA”) which in turn acts as the official governing body of the Paris Agreement, see https://unfccc.int/process/bodies/supreme-bodies/conference-of-the-parties-serving-as-the-meeting-of-the-parties-to-the-paris-agreement-cma
 Paragraph 6 Annex I to Decision 4/CMA.1.
 European Union NDC, 17 December 2020.
 United States of America NDC, 22 April 2021.
 Brazil NDC, 7 April 2022.
 ‘Key Concepts, Core Challenges and Governance Functions of International Climate Governance’, Paris, France: Institute for Sustainable Development and International Relations, 2017.
 Subsidiary Body for Implementation (“SBI”) and Subsidiary Body for Scientific and Technological Advice (“SBTSA”)
 Decision 1/CP.21 paragraph 26.
 Decision 1/CP.21 paragraph 31.
 Decision 19/CMA.1, paragraph 36(h).
 ‘Cooperation with the IPCC’ https://unfccc.int/topics/science/workstreams/cooperation-with-the-ipcc/background-cooperation-with-the-ipcc
 For example, in response to requests from the COP at COP21, the SBSTA Chair organised the ‘SBSTA-IPCC special event on advice on how the assessments of the IPCC can inform the global stocktake’.
 Article 15(2) Paris Agreement.
 Decision 20/CMA.1, Annex paragraph 22(a).
 Decision 19/CMA.1, paragraph 2.
 ‘Explaining the First “Global Stocktake” of Climate Action’, World Resources Institute, 7 November 2022 https://www.wri.org/insights/explaining-global-stocktake-paris-agreement
 ‘Toward More Effective Implementation of the Paris Agreement’, World Resources Institute Working Paper, 26 October 2021 https://www.wri.org/research/toward-more-effective-implementation-paris-agreement-learning-30-years-experience
 ‘5 Challenges the UNFCCC Must Overcome To Spur Climate Action’, World Resources Institute, 14 March 2022 https://www.wri.org/insights/5-challenges-unfccc-must-overcome-climate-action