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Common But Differentiated Responsibilities Beyond the Nation State: How Is Differential Treatment Addressed in Transnational Climate Governance Initiatives?

  • Paula Castro (a1)

Abstract

Many multilateral environmental agreements have adopted differentiated rules for different countries, based on the recognition of the ‘common but differentiated responsibilities’ (CBDRs) of states. By establishing two rigid groups of countries with and without emissions reduction obligations, the intergovernmental climate regime represents the most extreme case of such differentiation. The regime has struggled to overcome this rigidity and the resulting political deadlock between developing and developed countries. Transnational climate governance (TCG) initiatives have emerged as an alternative to provide mitigation, adaptation or finance outside the multilateral process. By drawing on synergies between public and private actors, it is hoped that they overcome the paralysis of the intergovernmental process. Yet, they take place in the same world of unequal peers, with different levels of capacity and responsibility for climate change. This article investigates the extent to which such TCG initiatives reflect the CBDR principle. Do different types of initiative – involving different types of actor or with different climate-related goals – address differentiation in distinct ways? Does taking account of CBDRs affect the membership of transnational initiatives? This article explores these questions empirically by analyzing a sample of TCG initiatives in terms of how they include differential treatment of states and non-state members. It concludes that TCG initiatives address differentiation in a pragmatic way. Most frequently, they either offer participants flexibility in how to implement their commitments, or provide support to members from developing countries. Such support is, so far, still insufficient to address the limited involvement of developing country actors.

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Copyright

Footnotes

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This article was partly written during a fellowship at the Käte Hamburger Kolleg/Centre for Global Cooperation Research of the University of Duisburg-Essen. Financial support from the Centre and also from the Swiss National Science Foundation (Project Number 100017_143539) is gratefully acknowledged. Comments from three anonymous reviewers helped to substantially improve this article.

Footnotes

References

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1 Rio Declaration on Environment and Development, adopted by the United Nations (UN) Conference on Environment and Development, Rio de Janeiro (Brazil), 3–14 June 1992, UN Doc. A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992, available at: http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.

2 Rajamani, L., Differential Treatment in International Environmental Law (Oxford University Press, 2006), pp. 93114 .

3 Magraw, D.B., ‘Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms’ (1990) 1(1) Colorado Journal of International Environmental Law & Policy, pp. 6999 .

4 New York, NY (US), 9 May 1992, in force 21 Mar. 1994, available at: http://unfccc.int.

5 Kyoto (Japan), 11 Dec. 1997, in force 16 Feb. 2005, available at: http://unfccc.int/kyoto_protocol/items/2830.php.

6 Rajamani, L., ‘The Changing Fortunes of Differential Treatment in the Evolution of International Environmental Law’ (2012) 88(3) International Affairs, pp. 605623 , at 611.

7 Depledge, J., ‘The Road Less Travelled: Difficulties in Moving between Annexes in the Climate Change Regime’ (2009) 9(3) Climate Policy, pp. 273287 , at 273.

8 Annex I UNFCCC lists all countries that were members of the Organisation for Economic Co-operation and Development (OECD) in 1992 and several economies in transition, including the Russian Federation, the Baltic states, and several Central and Eastern European states. Annex II lists only the OECD countries. Art. 4 UNFCCC sets out 3 separate sets of obligations, applicable to these 3 groups of parties. A more detailed description of these country categories, their members and respective obligations can be found in Depledge, n. 7 above.

9 Depledge, J., ‘Continuing Kyoto: Extending Absolute Emission Caps to Developing Countries’, in K. Baumert (ed.), Building on the Kyoto Protocol: Options for Protecting the Climate (World Resources Institute, 2002), pp. 3160 , at 41.

10 For more detailed accounts of all these cases, see Depledge, n. 7 above, p. 279; and P. Castro, ‘How and Why Are Institutionalized Country Groups with Differential Treatment Created in Multilateral Environmental Agreements: A Comparative Analysis’, conference paper presented at the Annual Convention of the Swiss Political Science Association, Basel (Switzerland), 21–22 Jan. 2016, pp. 21–4.

11 Kyoto Protocol, n. 5 above, Arts 20 and 21.

12 Depledge, n. 9 above, p. 33: see also Depledge, n. 7 above.

13 UNFCCC, Art. 4(6).

14 Ibid., Preamble.

15 E.g., ibid., Arts 4(1), 4(5) and 12(1); and Kyoto Protocol, Arts 2(1) and 10. See also Rajamani, n. 2 above, pp. 199–201.

16 Pauwelyn, J., ‘The End of Differential Treatment for Developing Countries? Lessons from the Trade and Climate Change Regimes’ (2013) 22(1) Review of European Community & International Environmental Law, pp. 2941 ; Prys-Hansen, M. & Franz, B., ‘Change and Stasis: The Institutionalisation of Developing Country Mitigation in the International Climate Regime’ (2015) 26(4) Diplomacy & Statecraft, pp. 696718 . See also Rajamani, n. 6 above, pp. 615–6.

17 Decision 2/CP.15, ‘Copenhagen Accord’, UN Doc. FCCC/CP/2009/11/Add.1, 30 Mar. 2010, p. 4.

18 Decision 1/CP. 16, ‘The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention’, UN Doc. FCCC/CP/2010/7/Add.1, 15 Mar. 2011, p. 2.

19 Decision 1/CP.17, ‘Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action’, UN Doc. FCCC/CP/2011/9/Add.1, 15 Mar. 2012, p. 2 (emphasis added).

20 Paris (France), 13 Dec. 2015, not yet in force (in UNFCCC Secretariat, Report of the Conference of the Parties on its Twenty-First Session, Addendum, UN Doc. FCCC/CP/2015/10/Add.1, 29 Jan. 2016).

21 Rajamani, L., ‘Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics’ (2016) 65(2) International and Comparative Law Quarterly, pp. 493514 , at 509.

22 Decision 1/CP.21, ‘Adoption of the Paris Agreement’, UN Doc. FCCC/CP/2015/10/Add.1, 29 Jan. 2016, p. 22.

23 Rajamani, n. 21 above, p. 511.

24 Paris Agreement, Art. 3.

25 Ibid., Art. 9(2).

26 Bäckstrand, K., ‘Multi-Stakeholder Partnerships for Sustainable Development: Rethinking Legitimacy, Accountability and Effectiveness’ (2006) 16(5) European Environment, pp. 290306 ; Bulkeley, H. et al., ‘Governing Climate Change Transnationally: Assessing the Evidence from a Database of Sixty Initiatives’ (2012) 30(4) Environment and Planning C: Government and Policy, pp. 591612 , at 603; Green, J.F., Rethinking Private Authority: Agents and Entrepreneurs in Global Environmental Governance (Princeton University Press, 2013); Green, J.F., ‘Order Out of Chaos: Public and Private Rules for Managing Carbon’ (2013) 13(2) Global Environmental Politics, pp. 125 , at 17; Hale, T. & Roger, C., ‘Orchestration and Transnational Climate Governance’ (2014) 9(1) The Review of International Organizations, pp. 5982 . For a more general argument, see also Krasner, S.D. & Risse, T., ‘External Actors, State-Building, and Service Provision in Areas of Limited Statehood: Introduction’ (2014) 27(4) Governance, pp. 545567 .

27 Pattberg, P., ‘The Institutionalization of Private Governance: How Business and Nonprofit Organizations Agree on Transnational Rules’ (2005) 18(4) Governance, pp. 589610 ; Okereke, C., Bulkeley, H. & Schroeder, H., ‘Conceptualizing Climate Governance Beyond the International Regime’ (2009) 9(1) Global Environmental Politics, pp. 5878 , at 58; Biermann, F., ‘Beyond the Intergovernmental Regime: Recent Trends in Global Carbon Governance’ (2010) 2(4) Current Opinion in Environmental Sustainability, pp. 284288 , at 285.

28 Biermann, ibid., p. 286. See also Widerberg, O. & Pattberg, P., Harnessing Company Climate Action Beyond Paris (FORES Study 2015:6, FORES, 2015), p. 47 ; Michaelowa, K. & Michaelowa, A., ‘Transnational Climate Initiatives: An Alternative Way to Climate Change Mitigation?’, conference paper presented at the 9th Annual Conference on the Political Economy of International Organizations, Salt Lake City, UT (US), 7–9 Jan. 2016 , available at: http://wp.peio.me/the-9th-annual-conference/program-and-papers-2016.

29 Biermann, n. 27 above, p. 286.

30 Bulkeley et al., n. 26 above, p. 601; Widerberg & Pattberg, n. 28 above, p. 22. See also Bulkeley, H. et al., Transnational Climate Change Governance (Cambridge University Press, 2014); and Chan, S. & Van Asselt, H., ‘Transnational Climate Change Governance and the Global South’, conference paper presented at the Conference ‘Transformative Global Climate Governance Après Paris’, Berlin (Germany), 23–24 May 2016 ; but see Lee, T., ‘Global Cities and Transnational Climate Change Networks’ (2013) 13(1) Global Environmental Politics, pp. 108127 , at 122–4, which did not find any significant effect from being located in an Annex I country or from having a high income level. City participation in networks seemed to be related more to how well the city is connected with the globalized world than whether it is located in a developing or a developed country.

31 Widerberg & Pattberg, n. 28 above, pp. 22–3.

32 Green, Rethinking Private Authority, n. 26 above, pp. 13–4.

33 Hale, T. & Held, D., Handbook of Transnational Governance (Polity Press, 2011), p. 12 ; Roger, C., Hale, T. & Andonova, L., How Do Domestic Politics Shape Participation in Transnational Climate Governance?, BSG Working Paper 2015/001, Blavatnik School of Government, University of Oxford, United Kingdom (UK), June 2015, p. 2 , available at: https://www.bsg.ox.ac.uk/sites/www.bsg.ox.ac.uk/files/documents/BSG-WP-2015-001.pdf.

34 Available at: http://www.c40.org. See also Lee, T. & de Meene, S.V., ‘Who Teaches and Who Learns? Policy Learning through the C40 Cities Climate Network’ (2012) 45(3) Policy Sciences, pp. 199220 .

35 Available at: http://www.covenantofmayors.eu.

38 Available at: https://www.thepmr.org.

39 Available at: https://www.theice.com/ccx.

40 Bulkeley et al., n. 26 above, p. 595.

41 Ibid., p. 596.

42 Roger, Hale & Andonova, n. 33 above.

43 Hale & Roger, n. 26 above.

44 N. 34 above.

45 Available at: http://acccrn.net.

47 Available at: http://www.reeep.org.

48 Available at: https://www.cdp.net.

52 Available at: http://www.ghgprotocol.org.

54 Own website discontinued, information available at: https://tellitsgreen.com/organic-logos/1088/carbonfix-standard.

56 Available at: http://www.green-e.org.

57 Own website discontinued, information available at: http://energy-base.org/project/previous-projects/#SEF.

58 Available at: http://www.unepfi.org.

59 N. 47 above.

61 N. 37 above.

62 E.g., the goal of the World Bank’s BioCarbon Fund and Prototype Carbon Fund is to pioneer emissions reduction projects in developing countries that can be used within the Kyoto Protocol CDM; for the case of the Prototype Carbon Fund see Andonova, L.B., ‘Public-Private Partnerships for the Earth: Politics and Patterns of Hybrid Authority in the Multilateral System’ (2010) 10(2) Global Environmental Politics, pp. 2553 , at 39.

63 Roger, Hale & Andonova, n. 33 above. See also Hale & Roger, n. 26 above; Bulkeley et al., n. 30 above; Hoffmann, M.J., Climate Governance at the Crossroads: Experimenting with a Global Response after Kyoto (Oxford University Press, 2011) for earlier versions of the dataset.

64 Michaelowa & Michaelowa, n. 28 above.

65 N. 48 above.

66 N. 38 above.

67 Ibid.

68 N. 45 above.

69 N. 37 above.

70 N. 60 above.

71 N. 38 above.

74 Available at: http://www.cti-pfan.net.

75 N. 47 above.

76 N. 34 above.

77 N. 73 above.

78 N. 60 above.

79 Available at: http://www.compactofmayors.org.

80 Available at: http://under2mou.org.

82 Own website discontinued, information available at: http://www.c2es.org/us-states-regions/regional-climate-initiatives/mggra.

83 N. 39 above.

84 Bulkeley et al., n. 26 above; Widerberg & Pattberg, n. 28 above; Chan & Van Asselt, n. 30 above.

85 N. 58 above.

86 UNEP FI, ‘Outreach to Developing Countries and Emerging Economies’, available at: http://www.unepfi.org/work-streams/climate-change/outreach.

88 Available at: http://cleanairasia.org.

91 N. 79 above.

92 N. 20 above.

93 Compact of States and Regions, ‘Disclosure Report 2015’, pp. 2 and 5, available at: https://www.theclimategroup.org/sites/default/files/compact-of-states-and-regions-disclosure-report-2015.pdf.

94 Available at: http://www.compactofmayors.org.

95 N. 38 above.

This article was partly written during a fellowship at the Käte Hamburger Kolleg/Centre for Global Cooperation Research of the University of Duisburg-Essen. Financial support from the Centre and also from the Swiss National Science Foundation (Project Number 100017_143539) is gratefully acknowledged. Comments from three anonymous reviewers helped to substantially improve this article.

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