175 Agreement are not targeted at compensating those who must bear the consequences of climate change even though their contributions to global emissions is comparatively low.
However, the position of the Paris Agreement on distributive justice is more nuanced. Although the Paris Agreement is not primarily focused on ensuring that the climate change action in developing state parties is well aligned with their developmental imperatives, it contains a few provisions that protect the status of certain parties as developing states. In other words, some of the provisions of the Paris Agreement, like those on climate finance and emission reduction, differentiate between developed and developing states. In doing so, this ensures that developing states are given certain leverages that will strengthen their capability to pursue climate change action and ensure that climate change responsibility does not constitute an additional burden to their economies. A provision such as that on emission reduction also ensures that these developing states, including African state parties, are able to pursue development without climate change responsibilities standing in their way.
Overall, it has been established that the Paris Agreement does not adopt a restorative justice conception of equity. It does not acknowledge the liability of developed states for the majority of emissions, neither does it seek to provide compensation for state parties that must now face the consequences of climate change regardless of their insignificant levels of emissions.
However, the Paris Agreement does adopt some distributive justice principles. This is revealed in the provisions on climate finance and emission reduction, wherein the protocol differentiates between developed and developing states and seeks to ensure that developing states are provided with the necessary support for enhancing their capability to undertake climate change action and guarantee that climate change responsibilities do not constitute an additional burden or obstacles to their developmental objectives.
4. FROM RIO TO PARIS: CHANGING CONCEPTIONS OF EQUITY
176 As seen in chapters three and four, and section three of this chapter, the UNFCCC, the Kyoto Protocol, and the Paris Agreement have all adopted the principle of equity as revealed in the distribution of rights and responsibilities within each of these treaties. However, the conception of this principle within the Paris Agreement differed in some major ways when compared to the UNFCCC and the Kyoto Protocol.
The approach of the UNFCCC and the Kyoto Protocol reflects both a distributive and a restorative justice conception of equity. Rights and responsibilities were distributed on the basis that developed states possess greater financial and technological capacity in comparison to their developing state counterparts. These agreements also recognized that developed states bear historical responsibility for the majority of past emissions and should, therefore, take on the primary obligations on climate change action. This allocation of responsibilities ensured that climate change obligations did not constitute any restrictions on the ability of developing states to pursue industrialization, and provided compensation, albeit unenforceable, for African states, and their developing counterparts affected by the consequences of climate change despite their low levels of historic and current emissions of greenhouse gases.
Although the Paris Agreement recognizes the principle of equity and differentiates between the responsibilities of developed and developing state parties, the application of this principle takes on a new slant within the agreement. First, the principle of equity is couched differently from how it is couched in the UNFCCC. Article 2 states that the Paris 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’ (emphasis added).
This article adds a proviso - in the light of different national circumstances – to the application of equity and differentiation.
This proviso was introduced in the US-China Joint Announcement on Climate Change in November 2014.145 It became known as the Lima qualifier when it found its way into Decision 1/CP.20 at the Conference of the Parties hosted in Lima, Peru. In that decision, state parties expressed their ‘commitment to reaching an ambitious agreement in 2015 that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of
145 White House, ‘US-China Joint Announcement on Climate Change’ 11 November 2014 available at https://obamawhitehouse.archives.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate- change#:~:text=The%20United%20States%20intends%20to,reduce%20its%20emissions%20by%2028%25 (accessed 11 February 2021).
177 different national circumstances’ (emphasis added).146 It became apparent thereafter that the Lima qualifier would be included in any differentiation of rights and responsibilities under the Paris Agreement.147
State parties had included the phrase, ‘in the light of different national circumstances’, to emphasise a departure from the annex-based classification of states into developing and developed states. This phrase was seen by developed state parties, weary of the sharp differentiation in the UNFCCC and Kyoto Protocol, as a means to increase the number of considerations for determining the applicability of differentiation between state parties.148 This meant that equity and differentiation under the Paris Agreement would not apply as static principles or based on a broad classification of a state as developed or developing. Rather, the application would be dynamic and change as the national circumstance of a state changed. The result is that since national circumstances are always evolving, the application of equity with respect to each particular state would also evolve with time. The Lima qualifier, they believe, gave room for a more flexible and evolutionary application of equity and differentiation compared to the rigid annex-based system of the UNFCCC.149
The Paris Agreement is also mute on the matter of historical responsibility or the role of past emissions. Unlike the UNFCCC and the Kyoto Protocol, which expressly acknowledges that developed states are liable for the majority of historical emissions,150 the Paris Agreement makes no mention of historical responsibility. Current national circumstance, rather than historical levels of emissions, is made the primary factor in the distribution of rights and obligations in the Paris Agreement. Present economic realities now take pre-eminence over historical responsibility. This represents a shift from the restorative justice conception of equity contained in the UNFCCC.
The Paris Agreement also departs significantly from the leadership paradigm seen in the UNFCCC and the Kyoto Protocol. This is seen primarily in the provision on climate finance.
Developed states no longer have the sole responsibility to provide climate finance. The role of
146 UNFCCC, Decision 1/CP.20. Lima Call for Climate Action (UN Doc. FCCC/CP/2014/10/Add.1 2 February 2015) para 3.
147 Rajamani (n15 above) 508.
148 Doelle (n68 above) 1.
149 Maljean-Dubois (n77 above) 153-154.
150 Preamble to the UNFCCC.
178 non-developed state parties in providing climate finance was acknowledged and protected in the Agreement. This extends the class of climate donors.
Developed states had argued for the broadening of the class of donors since that would be a more accurate indication of the evolving economic realities of different state parties.151 This position was turned down by stronger developing states who feared that they would be included in the class of donors despite the fact that they were ‘new-comers’ to industrialization.152 Eventually, parties agreed on the term ‘other parties’, and these other parties were under no obligation to provide climate finance. They are only ‘encouraged’ to contribute.
Therefore, the Paris Agreement creates a group of ‘other parties’ that are urged to donate voluntarily towards climate finance. The Agreement does so while keeping the customary UNFCCC classification wherein developed state parties have a responsibility to transfer climate finance to their developing counterparts. This voluntary class of donors will include non-developed state parties that had hitherto been within the definition of beneficiaries of climate finance. Although the Agreement differentiates between voluntary financial assistance by other parties and the binding obligation of developed states, it is nevertheless a significant shift from prior provisions on climate finance and does away with retribution as a basis for equity in climate finance.
This is buttressed by Article 9(3), which states that ‘[a]s part of a global effort, developed state parties should continue to take the lead in mobilizing climate finance from a wide variety of sources, instruments and channels… (emphasis added).’ The provision makes use of the word
‘should’, rather than ‘shall.’153 Although it has been opined that the use of should, rather than shall, may have been a product of political necessity,154 there is general consensus in international law jurisprudence that, while shall connotes bindingness, should does not. This suggests that developed states were unwilling to be solely liable for the mobilization of climate finance.
This use of words, coupled with the lack of quantitative provisions for developed states on climate finance, gives room for developed state parties to shed themselves of any concrete
151 Ralph Bodle, Lena Donat & Matthias Duwe ‘The Paris Agreement: Analysis, assessment and outlook’ 2016 10(1) Carbon and Climate Law Review 5, 11.
152 Rajamani (n15 above) 508.
153 The Agreement also makes use of the word ‘should’ in article 4(4) with respect to emission reduction targets.
154 Alexander Zahar ‘The Paris Agreement and the gradual development of a law on climate finance’ (2016) 6 Climate Law 75, 78.
179 responsibility towards developing state parties.155 It represents a departure from the principle of historic responsibility, which had driven the distribution of obligations in the earlier days of the global climate change regime. What is relevant for this research is the clear indication from developed state parties that the application of equity and the consequent distribution of responsibilities must follow current economic and emission realities.
Furthermore, the Paris Agreement also does away with the annex-based classification used in both the UNFCCC and the Kyoto Protocol. Under these earlier agreements, state parties usually fell within a classification as determined in the annex to these agreements and such classification determined the extent of their rights and responsibilities. In the Paris Agreement no such annexation exists, and this further establishes the idea that equity shall apply in accordance with the changing national circumstances of parties, rather than a fixed categorisation of state parties.
An examination of the Paris Agreement thus reveals a clear departure from the UNFCCC and Kyoto Protocol model of equity. It rejects a restorative justice conception of equity by avoiding any allusion to developed states’ historical responsibility for climate change, neither does it provide clear guidelines that oblige cooperation between developed and developing states. The differentiation of rights and responsibilities is not based on the historical emissions of any of the parties.
In place of this, the Paris Agreement favours a conception of equity that focuses on the current realities of state parties. It thus contains provisions that require developed state parties to provide climate finance to their developing counterparts and gives allowance for these developing parties to have a longer period to peak their greenhouse emissions. This ensures that climate change action does not constitute an additional burden on these states and merges climate change responsibilities with developmental imperatives, which may require that a developing state continues to increase their emission rates. Although imperfectly, this represents a distributive justice conception of equity. It seeks to ensure that those who are better off bear more responsibility in order to improve the condition of the less well-off states.
155 Joyeeta Gupta ‘The Paris Climate Change Agreement: China and India’ (2016) 6 Climate Law 180-181.
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