CHAPTER VI: COMPARATIVE ANALYSIS OF THE GREENHOUSE GASE
6.2. Comparison of emission mitigation regimes for developing countries under the
6.2.1. General considerations
The first and most glaring difference between the Kyoto Protocol and the Paris Agreement is the universal participation of all parties to the UNFCCC in the global effort to curb the emission of GHG under the Paris Agreement. Under the Paris’ universal regime, countries are equally considered, while expected to contribute to the global effort based on the principle of Equity and CBDR-RC. As for the regime of emission mitigation for developing countries, it follows from the information retrieved in Chapters four and five above that, there are very few similarities between Kyoto and Paris, yet multiple differences arise when comparing both regimes. This is because developing countries were not much concerned by the Kyoto Protocol to the UNFCCC, whereas they are fully taken into consideration by the Paris Agreement on climate change.996
Therefore, the regimes comparison of developing countries’ emission mitigation which follows will not only be undertaken based on few comparable parameters between the two treaties but those parameters that allow such a regime comparison will mainly be furnished by the Paris Agreement. This is because the Paris Agreement has offered concrete and substantial mitigation obligations features for developing countries that could be referred to, whereas the Kyoto Protocol remained silent, hence offering nothing substantial for a regime comparison. In other words, the enumeration and analysis of the differences and similarities between the two regimes will almost be limited to enumerating and analysing the innovations which are brought in by the Paris’ universal regime in contrast to the regime of exemption that was in application under the Kyoto Protocol for developing countries.
Although in broad terms, the nuance between the two regimes may seem obvious at first glance because developing countries have come from a situation of no obligation under
996 See sections 4.3 and 5.3.7 above.
the Kyoto Protocol, to a situation of concrete specific obligations under the Paris Agreement, the analysis of the regime transition between the two treaties remains relevant. In fact, a closer approach towards the legal situations of developing countries in both regimes exacerbates the necessity to scrutinise the subtleties of the differences and similarities represented by the regime transition under study. This is particularly relevant if one seeks to catch the significance of the new mitigation obligations for developing countries, consequential to the universality of the Paris Agreement. As announced at the introduction of this study,997 the research was not just a mere attempt to catch the differences and similarities between the regimes of both treaties, but also an effort to understand for the group of developing countries the implications of the transition from the regime of Kyoto to the new regime of Paris. Table 4 below summarises the similarities and differences between the two regimes under the two treaties, and it is followed by a corresponding analysis.
Although the Kyoto Protocol and the Paris Agreement were both adopted, “in pursuit of the ultimate objective of the UNFCCC”, they have not approached the climate change fight on the same basis.998 This is evidenced by their objectives and legal approaches which are dissimilar from each other, thus offering the first major sources of differences between the two treaties. The Kyoto Protocol was adopted in pursuit of the objective of the UNFCCC to stabilise the greenhouse gas concentrations in the atmosphere at levels that would prevent dangerous anthropogenic interference with the climate system,999 whereas the Paris Agreement has opted for a special objective of limiting the global temperature increase above the pre-industrial levels to well below two or even 1.5 degrees Celsius.1000 It is acknowledged that the Paris Agreement has taken on more responsibilities towards curbing the GHG emissions by fixing a precisely targeted limit to the global temperature increase, allowing its objective to be more precise, compared to the Kyoto Protocol, whose objective remained as vague as the objective of the UNFCCC itself.
997 See sections 1.4 and 1.5 above.
998 See Article 2 of the UNFCCC. See also Section 3.1.2.1 and note 300 above for the exact wordings, and more comments on the objective of the UNFCCC.
999 See preamble of the Kyoto Protocol and Section 4.3.1 above.
1000 See section 5.4.2 above.
Regarding the legal approach of the two treaties, the Paris Agreement as discussed above, has adopted a bottom-up approach which is represented by the strategy of National Determined Contributions (NDCs), thanks to which countries self-determine their contributions towards the global GHG mitigation objective;1001 whereas the Kyoto Protocol is based on a top-down approach,1002 represented by the Quantified Emission Limitation and Reduction Commitments (QELRCs) strategy, under which the required global emission mitigation burden is statutorily shared between the parties.
6.2.2. Particular considerations
As explained in the previous section, the differences between the two regimes will be almost limited to the innovations brought by the Paris Agreement, because of the silence of the Kyoto Protocol regime regarding emission mitigation obligation by developing countries. Table 4 below summarises the similarities and differences between the two regimes of the two treaties.
Table 4: Comparison of the emission mitigation regime for developing countries under the Kyoto Protocol and the Paris Agreement
Parameter of comparison The Kyoto Protocol The Paris Agreement Obligation relating to the NDC
strategy (preparation, implementation and report representing higher ambition compared to previous NDCs).
No Reference to NDC is made under the Protocol
NDC constitutes its core strategy and an obligation for
developing countries.
Articles 3, 4(2) and 4(3).
Obligation to pursue domestic mitigation measures with the aim of achieving the NDCs’
objectives.
Does not exist Constitutes an obligation for
Developing countries (Article 4.2).
Obligation to undertake economy- wide emission reduction or limitation targets over time.
Does not exist Constitutes a non- binding obligation for Developing countries (Article 4.4)
1001 See section 3.1.9 and note 465 above for more details about the NDC.
1002 See sections 3.3.2., 4.3.2 and 4.4 above.
Parameter of comparison The Kyoto Protocol The Paris Agreement Obligation to “cap” GHG
emissions in the long term.
Does not exist Constitutes an obligation for
Developing countries.
(Article 4.1).
Obligation towards a transparency mechanism.
Does not exist Constitutes an obligation for
Developing countries.
(Articles 4.8 and 13).
Reduction of Emissions from Deforestation and forest Degradation.
Does not exist Constitutes an obligation for
Developing countries.
(Articles 5.1 and 5.2).
Source: Own compilation of information from previous chapters.
6.3. Analysis of the differences and the similarities of the emission mitigation