UN Secretary General Ban Ki-moon characterized the 2015 Paris Agreement, adopted after years of deeply contentious multilateral negotiations, as a ‘monumental triumph’.Footnote 1 Indeed, it is—but not because it decisively resolves the climate crisis, it does not, but because the Paris Agreement represents a historic achievement in multilateral diplomacy. Negotiations rife with fundamental and seemingly irresolvable disagreements wound their way to a successful conclusion in Paris on 12 December 2015. These negotiations, driven by unprecedented political will,Footnote 2 were expected to reach an agreement. However the fact that they reached a finely balanced and highly ambitious agreement, despite the many criss-crossing red lines of Parties, is a testament to the powers of multilateral diplomacy.
In the years leading up to Paris, an understanding emerged on the critical relationship between the ambition of global efforts to lower greenhouse gas (GHG) emissions, differentiation between developed and developing countries, and mobilization of the financial resources needed to support climate change efforts. The greater the overall ambition, the greater the need for differentiation in efforts between developed and developing countries, as well as for increased financial resources to support these ambitious efforts. Developed countries—scarred by the Kyoto Protocol that obliged them alone to take on absolute emission reduction targetsFootnote 3—were fiercely resistant to another differentiated climate agreement. They were also reluctant, with their faltering economies, to finance global efforts to combat climate change. Developing countries, for their part, were loath to relinquish the differential treatment that had benefitted them thus far, and to assume a share of the financial burden for lowering emissions. Something had to give. Ambition, it was assumed.
The resulting Paris Agreement, however, is ambitious, containing aspirational goals, binding obligations of conduct in relation to mitigation, a rigorous system of oversight, and a nuanced form of differentiation between developed and developing countries. While it may not have satisfied those who sought to replicate the 1992 Framework Convention on Climate ChangeFootnote 4 or those who believed this agreement alone would halt global climate change, the Paris Agreement represents the most ambitious outcome possible in a deeply discordant political context. And, it became possible because it struck a fine balance between ambition and differentiation. This article will explore these key building blocks of the Paris Agreement—ambition and differentiation—with an eye to mining the text of the Agreement for its interpretative possibilities and underlying politics.
II. THE ROAD TO PARIS
The international climate change regime is comprised principally of the 1992 Framework Convention on Climate Change, the 1997 Kyoto Protocol and the decisions of Parties under these instruments. Although these instruments are important first steps towards addressing climate change and its impacts, they are widely regarded as inadequate, as well as inadequately implemented. At the Durban Conference in 2011, Parties launched a process, known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), to negotiate a new climate agreement by 2015 that would come into effect from 2020.Footnote 5 This agreement would be expected to govern, regulate and incentivize the next generation of climate actions.
The Durban Platform provided limited guidance on the form and content of the 2015 Agreement.Footnote 6 Primarily, it should take the form of a ‘Protocol, another legal instrument or agreed outcome with legal force’,Footnote 7 be agreed ‘under the Convention’ and ‘applicable to all’.Footnote 8 Each of these terms is a work of art and has been explored elsewhere.Footnote 9 Suffice it to say, disagreements emerged over these terms and the extent of their influence on the 2015 agreement. The Durban Platform also indicated the coverage of the 2015 agreement—‘inter alia, mitigation, adaptation, finance, technology development and transfer, transparency of action and support, and capacity-building’.Footnote 10 These came to be characterized as the Durban ‘pillars’.
At the Warsaw Conference in 2013, Parties were invited to prepare and submit ‘intended nationally determined contributions’ in 2015,Footnote 11 marking a key moment in the negotiations. Until then, an architectural battle had been raging between those favoring a Kyoto-style top-down prescriptive agreement and those favouring a Copenhagen-style bottom-up facilitative agreement. The Warsaw decision firmly posits the bottom-up approach as the starting point. The framing of national contributions—their scope, coverage, stringency, and whether they will be conditional—at least in the first instance, is left solely to the discretion of nations. At the Warsaw Conference, the ADP was also mandated to ‘identify … the information that Parties will provide when putting forward their contributions’.Footnote 12 There was general agreement that these contributions would need to be accompanied by information sufficient to generate clarity about the nature, type and stringency of the contributions.
The Lima Conference in 2014, however, could only provide tentative guidance on the information that Parties were to put forward with their nationally determined contributions.Footnote 13 The Lima decision listed, in a non-prescriptive manner, the types of information to be provided by Parties while communicating their contributions. This included information relating to the base year, time frames, scope and coverage, assumptions and methodologies, and information on how a state considers its contribution to be ‘fair and ambitious, in light of its national circumstances, and how it contributes towards achieving the objective of the Convention’ in Article 2.Footnote 14 The Lima decision requested the FCCC Secretariat to prepare a ‘synthesis report on the aggregate effect of the intended nationally determined contributions’.Footnote 15
The Lima Conference also produced the ‘elements of a draft negotiating text’ for the 2015 agreement.Footnote 16 Parties built on this text and adopted the Geneva Negotiating Text in February 2015.Footnote 17 This text and a series of ‘non-papers’ prepared by the ADP Co-Chairs provided the basis for negotiations in 2015.Footnote 18 In addition, Parties began to submit their intended nationally determined contributions. A total of 119 contributions from 147 Parties covering 86 per cent of global emissions were submitted and considered in the Secretariat's Synthesis Report produced on 30 October 2015.Footnote 19 A further 14 contributions have been submitted since.
Parties arrived in Paris armed with a 54-page informal note covering the full breadth of issues and range of Parties’ proposals.Footnote 20 Two weeks of late nights and frenetic negotiations later, and with skilled leadership from the French, Parties reached the historic 2015 Paris Agreement.
III. AMBITION: GOALS, OBLIGATIONS AND OVERSIGHT
The Paris Agreement is ambitious in several respects. It sets an ambitious ‘direction of travel’ for the climate regime and complements this with extensive obligations, including binding obligations of conduct in relation to mitigation contributions for Parties. It also establishes a rigorous and binding regime of oversight.
A. Ambitious Goals
The Paris Agreement resolves to hold the increase in global average temperature to ‘well below 2°C’ above pre-industrial levels, and to pursue efforts towards a 1.5°C temperature limit.Footnote 21 This was a key demand of the small island States and least developed countries—for them even a ‘well below 2°C’ temperature increase poses an existential threat. The world is not currently on a pathway to 1.5°C, far from it. Such a pathway would dramatically shrink the remaining carbon space, with troubling implications for countries like India that have yet to lift the vast majority of their citizens from the scourge of poverty.Footnote 22 Nevertheless, the ‘well below 2°C’ target and aspirational 1.5°C goal sets an ambitious direction of travel for the climate regime. It also signals solidarity with the small island States on the frontlines of climate impacts.
This ambitious long-term temperature goal is to be achieved, inter alia, through global peaking of GHG emissions as soon as possible, and rapid reductions thereafter ‘so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of GHGs in the second half of the century’.Footnote 23 Although Parties had proposed quantitative global mitigation goals such as those identifying specific peaking dates or percentage reductions from 2010 levels,Footnote 24 in the end only this qualitative goal that built on FCCC language and tipped a hat to the ‘net zero’ concept proved possible. The net zero GHG emissions concept requires anthropogenic GHG emissions to be reduced as far as possible with the remainder made up through enhanced removals of GHGs.Footnote 25 In addition, Parties are to ‘strive to formulate and implement’ long-term low GHG emission development strategies,Footnote 26 as these would play a critical role in shifting development trajectories and investment patterns towards meeting the long-term temperature goal.
The extent to which Parties are able to effectively embark on a pathway to meeting the long-term temperature goal will determine the extent of adaptation Parties will need to engage in. The Paris Agreement thus adopts a qualitative ‘global goal on adaptation’ to enhance adaptive capacity, strengthen resilience and reduce vulnerability to climate change.Footnote 27 The Africa Group had proposed a quantifiable goal that would assess adaptation impacts and costs flowing from the agreed temperature goal.Footnote 28 Although the notion of a quantifiable adaptation goal did not garner sufficient support, the Paris Agreement recognizes the critical interlinkages between the achievement of long-term goals, including in relation to temperature, and efforts related to mitigation, adaptation and means of implementation.Footnote 29
B. Extensive Obligations
In order to meet the long-term temperature goal, Parties are subject to binding obligations of conduct in relation to national mitigation contributions.Footnote 30 The most significant of these is contained in Article 4(2), which reads: ‘Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.’
There are many treasures to be mined in this carefully negotiated text. First, unlike the majority of provisions in the Paris Agreement that apply to ‘Parties’,Footnote 31 this provision applies to ‘each Party’, thus creating individual obligations for Parties. Second, this provision, like selective provisions in the Paris Agreement,Footnote 32 uses the imperative ‘shall’ both in relation to preparing, communicating and maintaining national contributions, as well as pursuing domestic measures. Third, while these are binding obligations, they are obligations of conduct rather than result. The term ‘intends to achieve’ in the first sentence establishes a good faith expectation that Parties intend to achieve their contributions, but stops short of requiring them to do so. The second clause in the second sentence, ‘with the aim of achieving the objectives of such contributions’, performs a similar function. It requires Parties to aim at achieving the objectives of their contributions.Footnote 33
Parties thus have binding obligations of conduct to prepare, communicate and maintain contributions, as well as pursue domestic measures. There is also a good faith expectation that Parties intend to and will aim to achieve the objectives of their contributions. In the lead-up to Paris many Parties, including the European Union (EU) and small island States, had argued that Parties should be required to implement and/or achieve their contributions, thus imposing an obligation of result on them. This was strenuously opposed by the US, China and India, among others, who did not wish to subject themselves to legally binding obligations of result. The Paris Agreement deferred to the latter in this respect, but ensured that Parties had binding obligations of conduct coupled with a good faith expectation of results. The good faith expectation of results is further underlined in provisions later in the Agreement that require each Party to provide the information necessary to track progress in implementing and achieving its nationally determined contribution,Footnote 34 and subject Parties to a ‘facilitative, multilateral consideration of progress’ with respect to such implementation and achievement.Footnote 35
The term ‘objectives’ in this provision also merits scrutiny. The nationally determined contributions Parties have submitted thus far contain a range of objectives—some quantitative, such as absolute emission reduction targets,Footnote 36 and others qualitative, such as goals to adopt climate friendly paths.Footnote 37 Some contributions are conditional (as for instance on the provision of international support),Footnote 38 while others are unconditional.Footnote 39 In the circumstances, an obligation of result, had one existed, may not lend itself to enforcement.
The nationally determined contributions referred to in Article 4(2) are to be recorded in a public registry maintained by the Secretariat.Footnote 40 The US, Canada and New Zealand, among others, favoured this approach, arguing that housing contributions outside the treaty would enable speedy and seamless updating of contributions. Others were concerned that if contributions were housed outside the treaty, Parties would enjoy excessive discretion in revising their contributions, potentially even downwards. The Paris Agreement, however, provides for the development of modalities and procedures for the operation and use of the public registry.Footnote 41 These modalities and procedures will presumably circumscribe the discretion Parties have. The Agreement also permits Parties to adjust their contributions, but only with a view to enhancing their level of ambition.Footnote 42 In any case, notwithstanding the fact that contributions are housed outside the instrument, Article 4(2) implicitly signals that national contributions are an integral part of the Paris Agreement.
In addition to the binding obligation to prepare, communicate and maintain contributions as well as to take domestic measures, Parties are subject to further obligations of conduct. Parties are required to communicate their contributions every five years.Footnote 43 While communicating their nationally determined contributions, Parties are required to provide the information necessary for clarity, transparency and understanding.Footnote 44 These provisions are phrased in mandatory terms (‘shall’), and thus constitute binding obligations for Parties. These provisions also oblige Parties to comply with decisions to be taken by the supreme decision-making body for the new agreement, known as the Conference of the Parties serving as the Meeting of the Parties to the Paris Agreement (CMA). The Paris Agreement requires Parties to communicate contributions every five yearsFootnote 45 and provide information necessary for their clarity, transparency and understandingFootnote 46 in accordance with decision 1/CP.21Footnote 47 and ‘relevant decisions’ of the CMA.Footnote 48 It could be argued that the Paris Agreement by incorporating these decisions makes them binding per se,Footnote 49 or it may be possible to read the Paris Agreement as having authorized the CMA to engage in binding law-making. In either case Parties are obliged to comply with the relevant decisions. It is worth noting that the ‘relevant decisions’ may provide Parties with discretion. In relation to information, for instance, decision 1/CP.21 agrees that Parties ‘may include, as appropriate, inter alia’ several listed pieces of information.Footnote 50
The Paris Agreement also requires Parties to account for their nationally determined contributions in accordance with ‘guidance’ adopted by the CMA.Footnote 51 Although the Agreement requires Parties to do so in mandatory terms, the use of the word ‘guidance’ may militate against an argument that the decision containing the guidance is intended to bind Parties. Much will depend on the terms—mandatory or discretionary—in which the decision is drafted.
Multilateral environmental agreements do not typically permit their supreme bodies, often referred to as the Conference of Parties (COP) to make legally binding decisions. The legal status of COP decisionsFootnote 52 depends on their enabling clause,Footnote 53 the language and content of the decisions, and Parties’ behaviour and legal expectations. All of these are typically prone to varying interpretations. From a formal legal perspective COP decisions are not, absent explicit authorization in the treaty, legally binding.Footnote 54 Neither the FCCC nor the Kyoto Protocol explicitly authorize binding law-making by the COP. The FCCC requires Parties to use ‘comparable methodologies’ to be agreed upon by the COP.Footnote 55 The Kyoto Protocol requires Parties to use ‘guidelines’ to be adopted by the Meeting of the Parties.Footnote 56 Both these provisions could be read to provide implied authority to the COP to engage in binding law-making, and the decisions, should they be phrased in mandatory terms, could be binding.
The fact that the Paris Agreement provides for potentially binding law-making in relation to five-yearly communication, provision of information and accounting is reflective of the fact that these rules of the game are crucial elements of the Paris package for some Parties, in particular the EU. It was not possible, however, to finalize them in Paris. These provisions permit Parties to continue the law-making exercise. The strength of these provisions, as well as the transparency framework, discussed below, can be attributed to the concerted efforts of an informal group of key negotiators from developed and developing countries, including South Africa, the EU, the US, Switzerland, New Zealand, Australia and others, as well as the Singaporean diplomat who facilitated the formal negotiations. This informal group that came to be called ‘Friends of Rules’ formed after Lima when they realized that the rules of the game, of profound importance to the integrity of the agreement, were getting short shrift in a process focused primarily on the headline political issues.
In addition to this array of obligations, the Paris Agreement sets a firm expectation that for every five-year cycle Parties must put forward contributions more ambitious than their last. The relevant provision reads: ‘[e]ach Party's successive nationally determined contribution will represent a progression beyond the Party's then current nationally determined contribution, and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in light of different national circumstances’.Footnote 57
This provision applies to ‘Each Party’ not to ‘Parties’ in general. The use of the auxiliary verb ‘will’ signals a strong expectation, albeit not a mandatory obligation, that each Party will undertake more ambitious actions over time. This notion, that finds reflection in the Lima decision,Footnote 58 had come to be characterized in the negotiations as ‘no-backsliding’. Many developing countries advocated it as a way to ensure that developed countries did not take on commitments less rigorous than their Kyoto commitments. It also formed the basis for Brazil's ‘concentric differentiation’ approach that envisioned gradual progression towards more ambitious type and scale of commitments over time for all Parties.Footnote 59
It is worth noting that the provision still leaves to national determination what Parties contributions will be and how these will reflect their ‘highest possible ambition’ and ‘common but differentiated responsibilities and respective capabilities, in light of different national circumstances’. Progression could be reflected in several ways. It could be demonstrated through more stringent numerical commitments of the same form, ie a decrease in emissions intensity from a base year over a previous intensity target, or an increase in absolute reductions over an earlier absolute reduction target. It could also be reflected in the form of commitments. For instance, Parties that have currently undertaken sectoral measures could be expected to take on economy-wide emissions intensity or business as usual (BAU) deviation targets, those that currently have economy-wide emissions intensity or BAU deviation targets could be expected to take on economy-wide absolute emissions reduction targets. The provision on progression is not prescriptive in relation to how progression (ie in form or rigour) is determined, and it is ambiguous on who determines progression, thus implicitly leaving progression to self-determination.
In addition to the requirement that Parties are to undertake more ambitious mitigation contributions over time, the Paris Agreement provides that ‘[t]he efforts of all Parties will represent a progression over time’.Footnote 60 This cross-cutting provision extends the progression requirement beyond mitigation to areas such as adaptation and support. This provision is distinct from the mitigation progression provision in two respects. First, it applies to ‘all Parties’ not ‘each Party’ indicating that it could be interpreted as a collective rather than individual requirement. Second, its uses the term ‘efforts’ rather than ‘nationally determined contributions’. This is because the term ‘efforts’ captures a range of actions that includes mitigation contributions,Footnote 61 adaptation planning and implementation,Footnote 62 and provision of financial resources to developing countries.Footnote 63 Both these provisions, however, are similar in that they use the auxiliary verb ‘will’ and at a minimum set strong expectations of more ambitious actions over time. Indeed, given the negotiating context, the rigorous system of oversight and the expectation of good faith implementation, Parties will be constrained to comply with these provisions.
Whether they place collective or individual expectations on Parties, and even if progression is self-determined, together these provisions bear tremendous significance, as they are designed to ensure that the regime as a whole is moving towards ever more ambitious and rigorous actions from Parties—that there is a ‘direction of travel’ for the regime, as it were. These provisions are also designed to ensure there will be continuing differentiation in the near future, since developed and developing countries, given the current balance of responsibilities in the FCCC and Kyoto Protocol, are at different starting points.
The Paris Agreement also places requirements on Parties in relation to adaptation, albeit softer ones peppered with phrases like ‘as appropriate’ that permit discretion. Parties are obliged to engage in adaptation planning and implementation of adaptation actions (‘Each Party shall’), and nudged to (‘Parties should’) submit and update adaptation communications,Footnote 64 strengthen cooperation on adaptation,Footnote 65 and enhance understanding, action and support with respect to loss and damage.Footnote 66
C. Rigorous Oversight
The Paris Agreement establishes a rigorous system of oversight to ensure effective implementation of the many requirements it places on Parties. This system of oversight is vital to the conceptual apparatus of the Agreement. In the lead- up to the Paris Conference, common ground emerged amongst Parties that the Paris Agreement, unlike the Kyoto Protocol, should reflect a hybrid architecture combining ‘bottom up’ nationally determined contributions with ‘top down’ elements such as rules on transparency. Battle lines were drawn, however, on how prescriptive the top-down elements should be. Although some Parties were keen to retain as much autonomy as possible, others fearing that boundless self-determination would be exercised in self-serving ways sought a more prescriptive regime. The more autonomy Parties enjoy, they believed, the less certain it is that the regime will meet its long-term temperature goal. The Paris Agreement strikes a balance between these competing demands—it preserves autonomy for States in the determination of their contributions but strengthens oversight of these contributions through a robust transparency system, a global stocktake process, and a compliance mechanism. In so doing, it circumscribes the self-serving nature of self-determination and generates normative expectations.
The Paris Agreement creates a robust ‘transparency framework for action and support’ that places extensive informational demands on all Parties,Footnote 67 and subjects information on mitigation and finance to close scrutiny.Footnote 68 This transparency framework, unlike the existing arrangements,Footnote 69 is a framework applicable to all countries albeit with ‘built-in flexibility’ tailored to Parties’ differing capacities.Footnote 70 In the lead-up to Paris, and until the end of the conference, many developing Parties, in particular the Like Minded Developing Countries (LMDCs),Footnote 71 argued for a bifurcated system that placed differing transparency requirements on developed and developing countries. The Umbrella Group and the EU eventually prevailed on the LMDCs, and the Paris Agreement contains a framework applicable to all.
The purpose of the transparency framework is to ensure clarity and tracking of progress towards achieving Parties’ nationally determined contributions and adaptation actions,Footnote 72 as well as to provide clarity on support provided and received by Parties.Footnote 73 Towards this end, all Parties are required bienniallyFootnote 74 to provide: a national inventory report of GHG emissions and removals;Footnote 75 information necessary to track progress in implementing and achieving mitigation contributions;Footnote 76 and information related to climate impacts and adaptation.Footnote 77 Further, developed countries are required to provide information on financial, technology and capacity building support they provide to developing countries,Footnote 78 and developing countries are to provide information on the support they need and receive.Footnote 79 It is worth noting that there is a hierarchy in the legal character of the informational requirements placed on Parties. Informational requirements in relation to mitigation are mandatory individual obligations applicable to all (‘each Party shall’). Informational requirements in relation to finance are mandatory collective obligations for developed countries (‘developed country Parties shall’) and recommendations for developing countries (‘developing country Parties should’). Informational requirements in relation to adaptation are recommendations (‘each Party should’), and allow Parties discretion (‘as appropriate’).
The information submitted by all Parties in relation to mitigation and by developed country Parties in relation to the provision of support will be subject to a technical expert review.Footnote 80 This review will consider the support provided to Parties, the implementation of their contributions, and the consistency of the information they provide with common modalities, procedures and guidelines for transparency of action and support.Footnote 81 In addition each Party is expected to participate in a ‘facilitative, multilateral consideration of progress’ with respect to its efforts in relation to finance, and the implementation and achievement of its mitigation contributions.Footnote 82 Both expert reviewsFootnote 83 and multilateral assessmentsFootnote 84 build on elements of the existing transparency arrangements. It is unclear at this point, however, how these processes will be conducted, who will conduct them, what its outputs will be, and how these outputs will feed into the global stocktake. The modalities, procedures and guidelines, elaborating on these processes that will supersede the existing arrangements, are to be developed by 2018 and applied after the Paris Agreement enters into force.Footnote 85
2. Global Stocktake
The transparency framework is complemented by a ‘global stocktake’ every five years to assess collective progress towards long-term goals.Footnote 86 The global stocktake is crucial to the system of oversight. In its absence it would be impossible to gauge if national efforts add up to what is necessary to limit temperature increase to 2°C. It will also be difficult to assess if States are contributing as much as they should given their responsibilities and capabilities.
The Paris Agreement provides broad guidance on the nature, purpose, tasks for and outcome of the stocktake, and leaves the mechanics to be finalized by Parties before entry into force.Footnote 87 The Paris Agreement envisions the stocktake as a ‘comprehensive and facilitative’Footnote 88 exercise—thus reinforcing the notion that the Paris Agreement addresses not just mitigation but also adaptation and support, and that it is a facilitative rather than a prescriptive instrument. Further, the Agreement is expressively silent on whether the stocktake extends only to the implementation of Parties' current contributions or also to the ambition of proposed contributions; arguably it covers both.
The purpose of the stocktake is to ‘assess the collective progress towards achieving the purpose of this Agreement and its long term goals’.Footnote 89 The ‘purpose’ of the Agreement is in Article 2, which includes the long-term temperature goal, and the context for implementation.Footnote 90 It is unclear what the ‘long term goals’ are. While mitigationFootnote 91 and adaptationFootnote 92 (albeit qualitative) goals have been identified in the Agreement, there are no clearly identifiable goals in relation to finance, technology and capacity-building. This introduces an element of uncertainty into the assessment of progress. Moreover, the stocktake is only authorized to consider ‘collective’ progress, thus insulating individual nations from any assessments of adequacy in relation to their actions.Footnote 93
The agreement sets various tasks for the stocktake, as for instance reviewing the overall progress made in achieving the global goal on adaptation.Footnote 94 It also identifies initial inputs to the stocktake, including information provided by Parties on finance,Footnote 95 available information on technology development and transferFootnote 96 and information generated through the transparency framework.Footnote 97 Others inputs will be identified in the years to come.Footnote 98
The global stocktake is required to assess collective progress ‘in the light of equity and the best available science’.Footnote 99 The inclusion of ‘equity’ was a negotiating coup for several developing countries, in particular the Africa Group, that had long championed the need to consider Parties’ historical responsibilities, current capabilities and development needs in setting expectations for nationally determined contributions.Footnote 100 It is unclear at this point how equity, yet to be defined in the climate regime, will be understood and incorporated in the global stocktake process. Nevertheless, the inclusion of equity in the global stocktake leaves the door open for a dialogue on equitable burden sharing. Finally, the outcome of the stocktake is required to inform Parties in updating and enhancing their actions and support ‘in a nationally determined manner’.Footnote 101 This is a carefully balanced provision. On the one hand, it links the outcome of the stocktake with the process of updating Parties’ contributions,Footnote 102 thus generating strong expectations that Parties will enhance the ambition of their actions in line with the findings of the stocktake. On the other hand, it underscores the ‘nationally determined’ nature of contributions, thus addressing concerns over external ratchets for enhanced actions and loss of autonomy.
The first stocktake is set to take place in 2023,Footnote 103 once the mechanics of the stocktake have been worked out, and the Agreement has entered into force. There was a felt need for an earlier stocktake to guide Parties, especially those with contributions set to five-year time frames, in updating and revising their contributions. Parties agreed therefore to convene a ‘facilitative dialogue’ in 2018 to take stock of the collective efforts of Parties in relation to the long-term mitigation goal identified in the Agreement, and for this stocktake to inform the preparation of their nationally determined contributions.Footnote 104
The global stocktake is cleverly designed to ensure both that it subtly constrains national determination in service of the long-term goals, and that it is palatable to all. Even to the LMDCs, for whom any assessment process (as it would necessarily impinge on sovereign autonomy) was an anathema. The global stocktake is a facilitative process. It assesses collective not individual progress. It assesses collective progress on mitigation as well as on support. It will consider not just science but also equity in determining adequacy of collective progress. And, finally, ratcheting of contributions as a result of the stocktake, if any, will be left to national determination.
The Paris Agreement establishes a mechanism to facilitate implementation of and promote compliance with its provisions. The skeletal provision establishing this mechanism provides only minimal guidance on the nature of the compliance mechanism, leaving the modalities and procedures to be negotiated in the years to follow.Footnote 105 The relevant provision requires the mechanism to address both implementation of and compliance with the Agreement. This mechanism is to consist of an expert-based facilitative committee that is to function in a transparent, non-adversarial and non-punitive manner.Footnote 106 This guidance addresses concerns of those who feared—across the developed–developing country divide—that the Paris Agreement would recreate a Kyoto-like compliance committee with an enforcement branch and severe compliance consequences.
IV. DIFFERENTIATION: ARTICULATION AND OPERATIONALIZATION
The ambitious goals, extensive obligations and rigorous oversight of the Paris Agreement, if applied uniformly, would act as a straitjacket for most developing countries. The Paris Agreement therefore is firmly anchored in the principle of common but differentiated responsibilities and respective capabilities, albeit in the light of different national circumstance. It also captures a nuanced form of differentiation in favour of developing countries, and extends financial, technological and capacity-building support to developing countries. It is this compromise on differentiation and support that untied the proverbial Gordian knot and cleared the way for the Paris Agreement to be adopted.
Prior to the Paris Conference, Parties had locked horns on three interrelated issues: the relationship of the 1992 Framework Convention on Climate Change, a deeply differentiated instrument, to the Paris Agreement ‘applicable to all’;Footnote 107 the articulation of the principle of common but differentiated responsibility and respective capabilities, a much cited and beloved principle for some, in the Paris Agreement; and the operationalization of this principle across the Durban pillars.
A. Relationship of the 2015 Paris Agreement to the 1992 Framework Convention on Climate Change
The 1992 Framework Convention on Climate Change is unabashedly favourable to developing countries—from the recognition in its preamble that the share of emissions from developing countries will grow to meet their social and development needsFootnote 108 to annex-based differentiation that exempts developing countries from emission reduction obligations.Footnote 109 Developed countries ensured in Durban that the Paris Agreement would be ‘applicable to all’,Footnote 110 while developing countries ensured that the Paris agreement would be ‘under the Convention’.Footnote 111 Developed and developing countries were pitched against each other in Paris. While the former envisioned the Paris Agreement as containing a distinct vision, representing a paradigm shift from the FCCC, the latter were keen to ensure that the Paris Agreement flows from the FCCC, and is guided by and interpreted in the light of it. This disagreement rippled through negotiations on the entire text, but was in evidence in particular in the negotiations on the chapeau to the purpose of the agreement, which reads: ‘[t]his Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty’.Footnote 112
Parties disagreed on whether the Paris Agreement should enhance the implementation of the Convention, as most developing countries argued it should, or just the objective of the Convention,Footnote 113 as most developed countries favoured. The former would engage the entirety of the Convention, including its conceptual architecture of which differentiation is such an important part. The latter would only engage the GHG stabilization objective of the Convention, thus implicitly permitting a different set of arrangements, including on differentiation, in service of the objective of the Convention. The final resolution, excerpted above, a carefully balanced compromise between China and the Umbrella Group,Footnote 114 is cloaked in ambiguity. The phrase ‘in enhancing the implementation of the Convention, including its objective’ could be read as an acceptance of the developing country position that this Agreement will enhance the implementation of the Convention. This would permit the entirety of the Convention to be engaged in interpreting the provisions of the Paris Agreement. The phrase could also be read as a statement of fact that the Agreement, such as it is, enhances the implementation of the Convention. Thus limiting, by implication, the engagement of the entirety of the Convention in interpreting the Paris Agreement. In this reading, the Convention is engaged only in so far as it is specifically referred to in the Paris Agreement.Footnote 115
The Paris Agreement, adopted pursuant to the Durban Platform,Footnote 116 is an agreement ‘under the Convention’. It is a related legal instrument, as is the Kyoto Protocol. Some provisions of the Convention explicitly apply to related legal instruments.Footnote 117 In addition, the negotiating history and context to the term ‘under the Convention’ in the Durban Platform decision suggests that the principles of the Convention, in particular the principle of common but differentiated responsibilities and respective capabilities, apply to the Paris Agreement. Further, specific provisions of the Convention are engaged when the Paris Agreement so provides.Footnote 118 Beyond this, there is a general legal imperative to interpret agreements in good faith in accordance with their ordinary meaning,Footnote 119 in context,Footnote 120 and harmoniously in relation to legal instruments covering the same subject matter.Footnote 121 The ambiguous nature of many provisions in both the Paris Agreement and the FCCC will make it easier to achieve harmonious construction between them, and to avoid normative conflicts.
B. Articulating the CBDRRC Principle in the Paris Agreement
The principle of common but differentiated responsibilities and respective capabilities—the CBDRRC principle—finds expression in the FCCC, and is the basis of the burden-sharing arrangements crafted under the FCCC and its Kyoto Protocol. As it is considered the ideological inspiration for the contentious annex-based differentiation, every instance of its articulation in the Paris Agreement is a product of careful negotiation.
The Durban Platform that launched the negotiating process towards the 2015 agreement, unusually so for the time, contained no reference to common but differentiated responsibilities and respective capabilities. Developed countries had argued that references to ‘common but differentiated responsibilities’ must be qualified with a statement that this principle must be interpreted in the light of contemporary economic realities. Many developing countries, argued in response that this would be tantamount to amending the FCCC. The text was thus drafted such that this new agreement was to be ‘under the Convention’Footnote 122 thereby implicitly engaging its principles, including the CBDRRC principle. The Doha and Warsaw decisions in 2012 and 2013 contained a general reference to ‘principles’ of the Convention,Footnote 123 but no specific reference to the CBDRRC principle. The Lima Call for Climate Action of 2014 contains an explicit reference to the CBDRRC principle, but it is qualified by the clause ‘in light of different national circumstances’.Footnote 124 This qualification—which represents a compromise arrived at between the US and ChinaFootnote 125—arguably shifts the interpretation of the CBDRRC principle. The qualification of the principle by a reference to ‘national circumstances’ introduces a dynamic element to the interpretation of the principle. As national circumstances evolve, so too will the common but differentiated responsibilities of States. It is this version of the principle of common but differentiated responsibilities with the qualifier ‘in light of different national circumstances’ that features in the Paris Agreement.
The Paris Agreement contains references to the CBDRRC principle in a preambular recital,Footnote 126 and in provisions relating to the purpose of the agreement,Footnote 127 progressionFootnote 128 and long-term low greenhouse gas development strategies.Footnote 129 The most significant of these references is Article 2 that sets the long-term temperature goal and frames the implementation of the entire agreement. It reads: ‘[t]his 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’.Footnote 130 It grew evident in the lead-up to Paris that any reference to CBDRRC would include the Lima qualifier ‘in light of different national circumstances’, however, the battle over the extent to which the Paris Agreement would mainstream this principle was still being waged in Paris. Most developing countries, in particular the LMDCs and the Africa group were keen that equity and CBDRRC should form the context for implementing the Paris Agreement. They proposed mandatory language to this end (‘shall be implemented on the basis of’).Footnote 131 The Umbrella group and the EU were reluctant to introduce equity and CBDRRC, with its unwieldy ‘annex’ baggage, into an operational paragraph of the agreement. They also argued that the meaning and implications of these terms are uncertain, and it would not be appropriate to introduce a note of uncertainty in the implementation of the agreement. They favoured language recognizing that the agreement ‘reflects’ equity and CBDRRC.Footnote 132 This, however, would have been problematic for developing countries, as it would have implied that the particular balance of responsibilities captured in the Paris Agreement would henceforth be synonymous with CBDRRC. Since their preferred interpretation of CBDDRC is in line with the expression of CBDDRC in the Kyoto Protocol rather than in the Paris Agreement, such a provision would have narrowed the range of interpretative possibilities of CBDDRC. The compromise eventually struck was to generate an expectation that the agreement will reflect equity and CBDRRC (‘will be implemented to reflect’). This preserves the range of interpretative possibilities of CBDDRC for developing countries yet stops short of prescribing equity and CBDRRC in the implementation of the agreement.
It is worth noting that the CBDRRC principle in Article 2 of the Paris Agreement could arguably be interpreted as distinct from the Convention's CBDRRC principle, both because of the inclusion of the Lima qualifier, ‘in light of different national circumstances’ as well as the nature of differentiation in the Paris Agreement. To the extent that the Paris Agreement reflects an operationalization of the principle different to that in the Convention, it is arguable that the Paris Agreement actually contains a distinct rather than derivative version of the principle.
In addition to the CBDRRC principle, the Paris Agreement contains reassuring references to the related notions of equity,Footnote 133 sustainable development,Footnote 134 equitable access to sustainable development,Footnote 135 poverty eradicationFootnote 136 and climate justice.Footnote 137 While some of these notions feature in the FCCC and others in COP decisions, they have arguably acquired a distinct character in the Paris Agreement. For instance, the references in the FCCC to poverty eradication recognize it either as a ‘legitimate priority need’Footnote 138 or an ‘overriding priorit[y]’,Footnote 139 whereas in the Paris Agreement it is recognized merely as part of the ‘context’ for action.Footnote 140
C. Operationalizing the CBDRRC principle in the Paris Agreement
The FCCC and the Kyoto Protocol operationalize the CBDRRC principle by requiring developed countries (alone), identified in its Annexes, to assume ambitious GHG mitigation targets. This form of differentiation has proven deeply controversial over the years, and the troubled waters the Kyoto Protocol has navigated in the last decade stand testimony to this. The Paris Agreement represents a step change from the FCCC and Kyoto in relation to differentiation. The Paris Agreement operationalizes the CBDRRC principle not by tailoring commitments to categories of Parties as the FCCC and the Kyoto Protocol do, but by tailoring differentiation to the specificities of each of the Durban pillars—mitigation, adaptation, finance, technology, capacity-building and transparency. In effect this has resulted in different forms of differentiation in different areas. It has also resulted, arguably, in transitioning differentiation from an ideological to a pragmatic basis.
1. Differentiation in Mitigation
The mitigation provisions of the Paris Agreement embrace a bounded self-differentiation model. The Warsaw decision invited parties to submit ‘intended nationally determined contributions’ in the context of the 2015 agreement.Footnote 141 In submitting these contributions, Parties were able to determine the scope of their contributions, their form, their rigour, and the information that will accompany them. In so far as Parties chose their own contributions and tailored these to their national circumstances, capacities and constraints, they differentiated themselves from every other nation. This form of differentiation has come to be characterized as self-differentiation. And, it is the starting point for differentiation in the mitigation section of the Paris Agreement.
First, it is worth noting that many of the provisions in the mitigation section are undifferentiated, in particular key provisions prescribing individual binding obligations of conduct for Parties.Footnote 142 Second, the provisions that incorporate differentiation are couched either in recommendatory termsFootnote 143 or phrased to set expectations rather than bind.Footnote 144 Even these cede to sovereign autonomy. For instance, in relation to the requirement placed on Parties that every successive mitigation contribution will represent a progression beyond their current contribution, as discussed above,Footnote 145 it is for Parties to determine what constitutes progression, and reflects its highest possible ambition and its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances. In relation to the requirement that all Parties should strive to formulate and communicate long-term low greenhouse gas emission development strategies,Footnote 146 it is for Parties to determine what these are to be, taking into account their common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.
There are, however, normative expectations attached to the flexibility afforded to Parties, which may function to discipline self-differentiation. Article 4(4), which seemingly endorses a Conventional form of differentiation, reads: ‘Developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances.’Footnote 147
The use of the terms ‘developed country Parties’ and ‘developing country Parties’ and the notion of leadership is reminiscent of the Convention. These terms evoke the burden-sharing arrangements of the Convention. And, this provision sets strong normative expectations on Parties. However, it is neither intended to nor does it create any new obligations for Parties. It urges developed countries to continue to undertake absolute emission reduction targets, which they had undertaken under the Cancun Agreements, and have pledged in their intended nationally determined contributions. It urges developing countries to continue to enhance their mitigation efforts, which they have done in leaps and bounds in the last decade. It further encourages them to move over time towards economy-wide targets in the light of different national circumstances. Since mitigation contributions are nationally determined, this is a normative expectation that Parties will exercise a particular choice, not a requirement that they do so.
Indeed it is precisely because this provision creates no new obligations that the US agreed to the Paris package. This provision was at the centre of the ‘shall/should’ controversy that nearly unravelled the Paris deal in the final hours.Footnote 148 The ‘take it or leave it’ text presented by the French contained mandatory language (‘shall’) in relation to developed country targets, and recommendatory language (‘should’) in relation to developing country mitigation efforts. In addition to the lack of parallelism in the legal character of requirements placed on developed and developing countries, the use of mandatory language for developed countries’ targets posed a problem for the US. In the light of long-standing and intractable resistance to climate treaties in the Senate, the US had been priming the Paris Agreement to ensure that it could be accepted as a Presidential-executive agreement. This would likely only be possible if the Paris Agreement is consistent with existing US domestic laws, and can be implemented through them.Footnote 149 Since the US does not currently have a domestic emissions target, it could not accept an international agreement obliging them to have one through a Presidential-executive agreement.Footnote 150 The ‘shall’ had to go if the US were to stay, but the prospect of changing such a critical word in a ‘take it or leave it’ text, endangered the entire deal. The LMDCs in particular threatened to revisit other compromises in the text if this word were to change. Eventually, after furious huddling in the room, and high-level negotiations outside it, the ‘shall’ was declared a typographical error and changed to a ‘should’ by the FCCC Secretariat.
Thus the mitigation section of the Paris Agreement operationalizes the CBDRRC principle through self-differentiation, but sets normative expectations in relation to the types of actions developed and developing country Parties should take, and in relation to progression through successive cycles of contributions. Thus arguably disciplining self-differentiation. Self-differentiation is the pragmatic choice for mitigation, the most contentious section of the Paris Agreement, because it provides flexibility, privileges sovereign autonomy and encourages broader participation. However, while it respects ‘national circumstances’ and ‘respective capabilities’, it leaves little room for tailoring commitments to differentiated responsibilities for environmental harm. In this it represents a departure from the FCCC and its Kyoto Protocol.
2. Differentiation in transparency
The transparency provisions of the Paris Agreement are premised on provision of flexibility to Parties based on their capacities. Parties rejected a bifurcated transparency system, on the table until the end, in favour of a framework applicable to all countries albeit with ‘built-in flexibility’ tailored to Parties’ differing capacities.Footnote 151 These provisions place uniform informational requirements on Parties in relation to mitigation and adaptation,Footnote 152 but differentiated requirements in relation to support.Footnote 153 Since Parties have differentiated obligations in relation to support the informational requirements are accordingly differentiated. Developed countries report on support they provide, developing countries on the support they receive and need. Information provided by all Parties, developed and developing, on mitigation and support is subject to a ‘technical expert review’ and ‘facilitative, multilateral consideration of progress’. However, for those developing country Parties that need it, the review shall include assistance in identifying capacity-building needs.Footnote 154 Further, the review is tasked with paying particular attention to ‘respective national capabilities and circumstances of developing country Parties’.Footnote 155 And, support is provided to developing countries for implementing transparency requirements,Footnote 156 and building transparency-related capacity.Footnote 157
Differentiation in the transparency provisions is thus a pragmatic tailoring of informational demands to capacities. While distinct from self-differentiation in the mitigation provisions, this too represents a departure from the FCCC that places different informational burdens set to different time frames on developed and developing countries.Footnote 158
3. Differentiation in finance
The finance provisions of the Paris Agreement are perhaps the most ‘Conventional’ in the form of differentiation they embody. Developed countries are required in mandatory terms (‘shall’) to provide financial resources to developing country PartiesFootnote 159 ‘in continuation of their existing obligations under the Convention’. It is the latter clause that permitted the US to accept this mandatory construction of their financial obligations. Developed countries are also required to continue to take the lead in mobilizing climate finance.Footnote 160 This obligation is given concrete content in the decision accompanying the Paris Agreement which captures an agreement to continue the collective developed countries’ mobilization goal through 2025, and to set before 2025, a ‘new collective quantified goal from a floor of USD 100 billion per year’.Footnote 161 Developing countries had negotiated to include such a goal in the Paris Agreement, however, in light of the strong financial obligations developed countries agreed to in the text, developing countries agreed to move this quantified goal to the accompanying decision. The Paris Agreement also obliges developed countries to biennially communicate ‘indicative quantitative and qualitative information’ in relation to provision and mobilization of finance.Footnote 162 This information will feed into the global stocktake of collective progress.Footnote 163
Although the responsibility for provision and mobilization of financial resources is placed primarily on developed countries, in a departure from the FCCC,Footnote 164 the Paris Agreement expands the donor base to ‘[o]ther parties’.Footnote 165 Other Parties, presumably, developing country Parties, are ‘encouraged’ to provide such support ‘voluntarily’.Footnote 166 And, they have correspondingly less demanding reporting requirements placed on them in relation to such support.Footnote 167 In the lead-up to Paris, various options were explored for expanding the donor base, regarding the Parties it would apply to (Parties in a ‘position’ or ‘with capacity’ to do so) and the expectations that would be placed on them (‘shall’ or ‘should’).Footnote 168 However such options were met with fierce resistance from many developing countries who believed that this would open the door to assessments of which countries were in a ‘position’ or had the ‘capacity’ to provide support. These countries would then be leaned on to provide support. Parties finally compromised on ‘other parties’, which was suitably neutral, and language encouraging voluntary provision of support by these parties. It is because of this expanded donor base in the Paris Agreement, that provisions on support across the Agreement are phrased in passive voice (‘support shall be provided’)Footnote 169 that precludes the need to identify who is to provide such support. Nevertheless, it is remarkable that the provision of support to developing countries is a central cross-cutting feature of the Paris Agreement. The Paris Agreement also recognizes in operational paragraphs that enhanced support for developing countries will allow for higher ambition in their actions,Footnote 170 and that developing countries will need to be supported to ensure effective implementation of the Agreement.Footnote 171
Needless to say the terms ‘developed’ and ‘developing’ countries have not been defined in the Paris Agreement. In Paris, countries with ‘economies in transition’ as well as those whose ‘special circumstances are recognized’ by the COP, viz, Turkey, sought to ensure that they would be included in the category of ‘developing countries’ and thus entitled to any benefits that might flow thereon.Footnote 172 This proved contentious until the end, but the term ‘developing countries’ was eventually left open and undefined. To many developed countries the use of these terms raises the spectre of the Convention's Annexes. It remains to be seen if some developing countries will seek to engage the embattled Annexes to provide concrete content to these terms.
Differentiation in the finance provisions is thus relatively close to the type of differentiation seen in the FCCC. Although there is a departure in that the donor base has been gently expanded, it is a less radical departure from the Convention than, for instance, the self-differentiation (albeit bounded) seen in the mitigation provisions.
The Paris Agreement represents a landmark in the UN climate negotiations. Notwithstanding enduring and seemingly intractable differences, Parties harnessed the political will necessary to arrive at an agreement that strikes a careful balance between ambition and differentiation. The Paris Agreement contains ambitious goals, extensive obligations and rigorous oversight. Admittedly the goals are aspirational, the obligations largely of conduct, and much of the mechanics of the oversight mechanisms have yet to be fleshed out. Further, the Paris Agreement in a show of solidarity with developing countries is also firmly anchored in the CBDR principle, and contains nuanced differentiation tailored to the needs of each Durban pillar—mitigation, adaptation, finance, capacity building, technology and transparency. Admittedly, the nature of differentiation in the Paris Agreement is distinct from that in the FCCC and its Kyoto Protocol, beloved of developing countries, and differentiation once inspired by principle is now firmly in the realm of practical politics.
Nevertheless, its many tenuous compromises and infirmities aside, the Paris Agreement represents hard-fought agreement between 196 nations. Countries across the developed and developing country divide made significant concessions from long-held positions in the dying hours of the conference to make the final agreement possible. The remarkable political will on display if not the regime created by the Paris Agreement will over time overcome the climate challenge.