5. THE UN FRAMEWORK CONVENTION ON CLIMATE CHANGE
5.2 Differentiation: bedrock of equity under the UNFCCC
The application of differentiation became one of the central manifestations of the application of equity in the UNFCCC. It reflects the arguments around the difference in the economic capabilities between developed states and their developing counterparts and the implication of such difference in how rights and responsibilities are distributed. The inclusion of differentiation in the treaty, therefore, serves as an embodiment of a conception of equity within the UNFCCC.
The preamble and article 3(1) establish the principle of differentiation as a guiding principle of the UNFCCC. Article 3(1) provides that state parties ‘should protect the climate system… on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof’ (emphasis added).
This provision connotes two things. It implies that notwithstanding their developmental status, all state parties are jointly responsible for climate change action. The preservation of the climate system must not be regarded as the duty of only a group of states. All states, whether developed or developing, share in the general obligation to reduce the accumulation of greenhouse gases in the air and must take steps to preserve the climate system. The climate system remains a global common for which every state party to the Convention must bear responsibility. This ensures that the efforts of all states are maximized for the benefit of the climate system notwithstanding their developmental status.178
178 Chen Zhou The Legal Barriers to Technology Transfer under the UN Framework Convention on Climate Change: The Example of China (2019) 31.
96 In line with the common responsibility of states, article 4(1) of the UNFCCC creates obligations that are common to all state parties. These responsibilities consists of the maintenance of national record of greenhouse gas emissions and sinks; adoption of national climate change mitigation and adaptation programmes; scientific and technical exchange;
forest, oceans and ecosystems management; and the incorporation of climate change into social, economic and environmental policies.179 These responsibilities are qualitative, rather than quantitative.180
The second purport of article 3(1) is that while all parties are encouraged to give some focus to climate change, they are not obligated to take on the same set of obligations. The exact role to be played by each state is differentiated. This means that even though all state parties may share some general responsibility, the extent of specific obligations would differ from one state party to another. This difference would be dictated by the capability or level of development of each group of states. It follows that state parties with higher levels of technological and financial resources would take on more obligations and stronger commitments under the Convention.
This helps to ensure that climate change responsibilities do not become an additional burden for developing state parties.
Differentiation, therefore, serves as a direct application of equity in order to enhance co- operation between developed and developing states. It serves as a strong statement of the parties’ commitment to substantive equality within the Convention.181 The concept emanates from the broader principle of equity and increases the likelihood of participation by developing states.182 Differentiation acknowledges the far-reaching inequalities between the priorities of developed and developing states.183 The application of differentiation, thus, helps to achieve some level of equality among state parties, by bridging the gap created by their unequal needs and capabilities.
However, developed and developing states view differentiation from two different perspectives. For developing states, it is an admission of the historical, moral, and legal liability
179 Article 4(1) of the UNFCCC.
180 Bodansky (n170 above) 505.
181 Zhou (n178 above) 31; Idil Boran ‘Principles of public reason in the UNFCCC: Rethinking the equity framework’ (2017) 23 Science & Engineering Ethics 1253, 1257.
182 Anita Halvorssen Equality among Unequals in International Environmental Law Differential Treatment for Developing Countries (1999) 3-4.
183 Jutta Brunnee & Charlotte Streck ‘The UNFCCC as a negotiation forum: Towards common but more differentiated responsibilities’ (2013) 13(5) Climate Policy 592.
97 of developed states to bear the burden for climate change given their volume of emissions.184 They view differentiation with a restorative justice lens. Developed states, on the other hand, view differentiation as a consequence of their higher levels of financial and technological capabilities. It reflects their ability to pay as against the view of developing states that there is a responsibility to pay.185
The principle is couched in terms that make it difficult to ascertain which of these conceptions is adopted by the Convention. As earlier mentioned, the acknowledgment of historic emissions in the preamble is not linked with the responsibility to pay for or lead climate change action.
Neither does the Convention connect differentiation in article 3 with an acknowledgement of historical emissions. It, however, seems that the inclusion of the phrase ‘respective capabilities’
to the principle of common but differentiated responsibilities, signifies that differentiation is linked to their ability to pay, rather than a historical responsibility.186
In furtherance of the principle of differentiation, the Convention creates three classes of state parties: Annex I, Annex II and developing states.187 Although there are general provisions that apply to all state parties, there are specific or additional obligations which only apply to states classified as Annex I and II state parties.188 Specifically, these duties pertain to the duty to report, the duty to reduce emissions and the transfer of finance and technology.189
In conclusion, differentiation in the UNFCCC is a reflection of the principle of equity. It guarantees that the differing capabilities of state parties remains a determinant factor in deciding how rights and responsibilities are shared. While developing states had viewed differentiation from a restorative justice lens, the wording of article 3 is more in support of a distributive justice conception. Differentiation is linked to the respective capabilities of state parties rather than historical responsibility.
184 Karin Mickelson ‘South, North, international environmental law, and international environmental lawyers’
(2000) 11 Yearbook of International Environmental Law 70.
185 Ibid.
186 The significance and implication of this difference in perspectives has become more obvious with the growth in the emission levels and wealth of certain developing countries, such as China, India, Brazil and South Africa.
If differentiation is based on historical emissions, it means that these countries continue to be excluded from substantive climate change responsibilities. If, however, it is based on the ability to pay, then these countries must now begin to take on substantive responsibilities under international climate change law. This contention ultimately led to the collapse of the Kyoto Protocol to the UNFCCC and defined the Paris Agreement.
187 Annex I and II to the UNFCCC.
188 Article 4(2) - (6) of the UNFCCC.
189 Article 4(2) - (6) of the UNFCCC.
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