2. THE PARIS AGREEMENT
2.2 Negotiating history of the Paris Agreement
2.2.1 General framework
The Durban Working Group started its work by drawing out the conceptual framework for the new agreement. In this phase, the Durban Working Group sought to formulate a common understanding of the key issues and shape the central components of the new agreement.5 In order to do this, state parties were invited to make submissions on the vision, ambition and principles which would govern the new agreement.
In response, the African Group submitted that the proposed legal agreement must seek to be fair, effective and conform to the principles of the UNFCCC.6 In order to achieve this, the agreement must be consistent with principles such as historical responsibility, equity, differentiation, primacy of national needs and the developmental priorities of developing states.7 Explaining further, African states contend that differentiation must be applied to commitments on emission reduction, finance and technology.8
5 Ibid.
6 Submission by Swaziland on behalf of the Africa Group on the Vision, Ambition and Principle under the ADP para 3 (hereinafter Submission by Swaziland on Vision, Ambition and Principle) available at https://unfccc.int/files/meetings/ad_hoc_working_groups/kp/application/pdf/adp_africangroup_050912.pdf (accessed 17 September 2018).
7 Ibid para 4; Submission by Swaziland on behalf of the African Group under Work stream I of the ADP para 7b
available at
https://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_african_group_workst ream_1_20131008.pdf (accessed 11 January 2019).
8 Para 5 Submission by Swaziland on Vision, Ambition and Principle.
142 In upholding the principle of equity and the need for differentiation, developing states, including South Africa and other African states, argued that the new agreement cannot interfere with the principles, provisions and annex provided for in the UNFCCC.9 They insisted that the new agreement negotiations must not ‘replace, rewrite, restructure, renegotiate, nor reinterpret’
these provisions and such provisions must be kept under the new agreement.10
African state parties maintained that the new agreement must be a tool which gives effect to
‘the right to equitable access to sustainable development.’11 Equity in the agreement had to be more than a cosmetic addition, it must inform all the operations of the Agreement by applying to both general and specific commitments of the various state parties.12 The African Group proposed that the final text should include the phrase that the agreement ‘shall be implemented on the basis of’.13 This inclusion ensures that equity is used in mandatory terms
However, this proposal was rejected by the European Union and the Umbrella Group14 on the ground that the exact meaning of the word ‘equity’ remains uncertain and this would create the need for an annex such as that contained in the UNFCCC and the Kyoto Protocol.15 They view the annex-based differentiation adopted in both earlier agreements as ‘static and unresponsive to evolving economic realities.’16 Instead, they argued for the use of descriptive language stating that the Agreement should ‘reflect’ equity rather than the mandatory ‘be on the basis
9 Submission of the Like-minded Developing Countries on Climate Change (24 September 2013) https://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_lmdc_workstream_1_
and_2_20130924.pdf (accessed 10 January 2021).
10 Ibid.
11 Submission by South Africa Durban Platform for Enhanced Action (26 April 2013) available at https://unfccc.int/files/bodies/application/pdf/adp_south_africa_workstream_1_20130427.pdf (accessed 17 September 2018).
12 Submission by Swaziland on behalf of the Africa Group in respect of Workstream I: 2015 Agreement under the ADP para 7 (hereinafter Submission by Swaziland in respect of Workstream I available at https://unfccc.int/files/bodies/awg/application/pdf/adp_2_african_group_29042013.pdf (accessed 14 September 2018); Submission by Swaziland on the Vision, Ambition and Principle.
13 Article 2(2) of the Draft Paris Outcome FCCC/ADP/2015/L.6Rev.1.
14 The Umbrella Group is a negotiation group consisting of Belarus, Kazakhstan, Russian Federation, Ukraine, Australia, Canada, Iceland, Japan, New Zealand, Norway, USA and Israel; see UNFCCC ‘Party groupings’
available at https://unfccc.int/process-and-meetings/parties-non-party-stakeholders/parties/party-groupings (accessed 3 November 2021).
15 Lavanya Rajamani ‘Ambition and differentiation in the 2015 Paris Agreement: Interpretative possibilities and underlying politics’ (2016) 65 International and Comparative Law Quarterly 508.
16 Lavanya Rajamani & Emmanuel Guerin ‘Central concepts in the Paris Agreement and how they evolved’ in Daniel Klein, Maria Pia Carazo, Meinhard Doelle et al (eds) The Paris Agreement on Climate Change: Analysis and Commentary (2017) 82.
143 of’ equity advocated for by the African Group.17 Eventually, parties settled for the expression that the ‘Agreement will be implemented to reflect equity.’18
It is noteworthy that the African Group, reiterated in its submissions to the Durban Platform, that differentiation must be one of the basic components of the new agreement and this agreement must recognize development as a priority for developing states.19 Where it becomes imperative for developing states to shoulder responsibilities, the African Group emphasised that such commitments would only be to the extent that financial and technological support is received from developed states, in accordance with article 4(7) of the UNFCCC.20 There should be no obligations without corresponding financial or technological support.
Similarly, South Africa submitted that poverty eradication was a priority and the new agreement had to have ‘clear co-benefits to participation,’21 Therefore, there was to be no constraints on the attempt of third world states to eradicate poverty or pursue industrialization.22 The treaty was to also contain incentives targeted towards the economic growth of developing states, especially those in Africa.23 The agreement was, therefore, to include a legally binding provision obligating developed states to provide ‘measured, reported and verified’ financial, technological and other capacity-building efforts to developing states.24 These submissions reveal an insistence by African states that equity must remain a guiding principle of any climate change agreement and must determine the distribution of rights and responsibilities between state parties. Importantly, this conception of equity must allow for African states to focus on the most important matter to them - development and poverty eradication. New climate change obligations must not add to the existing financial burdens or limit the available pathways to industrialization. Where climate change responsibilities exist,
17 Draft Paris Outcome, Proposal by the President Draft decision -/CP.21, Version 2 of 10 Dec 2015 17 available http://unfccc.int/resource/docs/2015/cop21/eng/da02.pdf (accessed 10 January 2019).
18 Article 2(2) of the Paris Agreement.
19 Submission by Swaziland in respect of Workstream I (n12 above) Para 1-2, 10; Submission by Sudan on behalf of the African Group ‘Elements of the draft negotiation text under the ADP available at https://unfccc.int/files/bodies/application/pdf/adp_w1_elements_africangroup.pdf (accessed 22 January 2021).
20 Para 11, 12(d) Submission by Swaziland on Vision, Ambition and Principle.
21 South African on Adaptation under the Ad Hoc Working Group on the Durban Platform for Enhanced Action 26 April 2013 (hereinafter South African Submission on Adaptation) available at https://unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_south_africa_workstre am_1_and_2_adaptation_20130930.pdf (accessed on 17 September 2018).
22 Ibid 2.
23 Ibid 1.
24 Ibid.
144 they must be accompanied by the necessary financial and technological support from developed state parties.