CHAPTER V: THE GREENHOUSE GASES EMISSION MITIGATION
5.4. The Paris Agreement: Adoption, Entry into force, Elements and Structure
5.4.3. Guiding principles of the Paris Agreement
difficulties above, it adds the weak side of the bottom up approach in an agreement requiring urgency and stringency of action as it is for the Paris Agreement.701 This is because the approach on which the NDC strategy sits does not give insurance that the Paris objective will not be met. Asselt702 fears that the objective of the Paris Agreement will fall through the cracks in a system of nationally determined inadequate offers. Along with others, Asselt justifies his fear by the fact that even the last update in 2016 of the Aggregation of countries’ INDCs did not match the objective of limiting global warming below 2 degrees Celsius.703 In fact, had it not been for the complexity of the dynamics surrounding the climate change international negotiations, the emission gap above would have arguably necessitated a top down allocation of the volume of emissions to be reduced, as it was the case under the Kyoto Protocol, but this time extended to all the country parties.704
Besides, a principle such as “the adoption of the highest possible ambition in defining goals in climate change matters” constitutes an innovation introduced by the Paris Agreement to serve the purpose of its long-term objective.708 Similar observations can be made for concepts such as climate justice, human rights, and the right to health, all enshrined in the Paris Agreement as new climate change concerns, unknown under the UNFCCC.709
The next section will discuss the CBDR principle under the Paris Agreement, and further explore the inter-generational equity principle. The principles that Paris shares with the UNFCCC were already discussed under section 3.1.2.2 above. The principle regarding the “adoption of the highest possible ambition in defining goals in climate change matters” will be discussed a bit further.
(i) The Equity and CBDR-RC Principle, in the light of different national circumstances.
The Equity and CBDR principle is the pivotal principle of both the UNFCCC and the Paris Agreement. The preamble of the Paris Agreement states that:
“Parties to this Agreement, in pursuit of the objective of the Convention, and being guided by its principles, including the principle of Equity and Common But Differentiated Responsibilities and Respective Capabilities, in the light of different national circumstances.”
Echoing the preamble, Articles 2.2 of the Agreement provides:
“This 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.”710
708 See section 5.3.8.2.2 below for more details
709 See the preamble of the Paris Agreement
710 See similar provision under Articles 4.3 and 4.19 of the Paris Agreement.
Under these two provisions of the Agreement, country parties are urged to address climate change on the basis of “equity” and “CBDR-RC principle,” and “in the light of different national circumstances”. The adding of “in the light of different national circumstances” is an innovation of the Paris Agreement. Under the UNFCCC, the formulation of the CBDR principles was slightly different:
“The parties should protect the climate system for the benefit of present and future generations of humankind, 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.”711
Under the above provision, country parties are exhorted to protect the climate system on the basis of “equity” and “in accordance with their common but differentiated responsibilities and respective capabilities”. And, the wording “Accordingly…” means
“as a consequence to what has just been said”. Subjecting therefore the sentence that follows to the one that has just been said. Making the provision means that the developed country parties are exhorted to take the lead in combating climate change as a result of the application of the CBDR principle. The wording that forms the CBDR principle in the Paris Agreement does not constitute an identical repetition of the wording of the CBDR principle under the UNFCCC. Therefore, there is a variability in the understanding one may have on the CBDR principle under both treaties. Similar observation is made if one compares the CBDR principle under the UNFCCC and its original enunciation under the 1992 Rio Declaration on sustainable development.712 Here is a summary of the changes that has occurred between the two treaties: some constituting elements have been removed whilst others have been added from either.
711 Article 3.1 of the UNFCCC.
712 See Section 2.3 above for more details about the CBDR Principles.
Table 2: CBDR wording changes between the UNFCCC and the Paris Agreement
Element UNFCCC Paris Ag.713
Equity Present Present
Common Responsibilities Present Present
Differentiated Responsibilities Present Present
Climate change Respective Capabilities of countries
Present Present Developed countries duty of leading climate
change response
Present Removed Different national circumstances in the treaty
implementation
Not considered
Present
Source: Our own comparison of information from the Paris Agreement and the UNFCCC.
The first change comes from the removal of the recognition of the historical responsibility of developed countries regarding climate change.714 Under the UNFCCC, the duty to lead in combating climate change was remitted to developed countries parties as a direct consequence of their climate change historical responsibility.715 This is not the case in the Paris Agreement, where the historical responsibility element has been removed.716 The second change comes from the introduction of the conditional element:
“in the light of different national circumstances” to make the CBDR principle mean:
country parties will apply the CBDR principle in the light of their different national circumstances.
Section 5.4.7 below focuses on the differential treatment under the Paris Agreement. It will therefore deconstruct the CBDR principle as it reads under the Agreement, and analyse its constituting elements (refer to table 2 above), in order to understand the essence of the changes that have occurred in the new climate change regime, as far as developing countries are concerned.
713 “Paris Ag.” In the table refers to the “Paris Agreement”
714 C. Bultheel et al ‘COP21: success at “the end of the beginning”’ (December 2015) I4CE Clim Brief n°38 at 2. Available at: http://www.i4ce.org/wp-core/wp-content/uploads/2015/12/15-12-18-I4CE- Climate-Brief-38-COP211.pdf. (Accessed: 12 August 2016).
715 See the Preamble of the UNFCCC.
716 Bultheel (note 714 above).
(ii) The inter-generational Equity principle
The inter-generational Equity principle is the second principle to be present in both texts, even though it is more stressed in the Paris Agreement in comparison to the UNFCCC.
The principle proclaims that the human race holds the natural environment of the planet in common with other species, people, and with the past, present and future generations.717 The principle comprises two dimensions: the inter-generational dimension, and the Equity dimension.718 That is why Weiss 719 once said that humans who live in the present generation are both trustees and beneficiaries of the planet, with the right to use and benefit from it, and the duty to safeguard its robustness and integrity in order to transmit it to the next generation.720 Issues related to the depletion, the access, the use of natural resources, the degradation of the quality of the environment, are the ones that are more of concern with regard to the inter-generational Equity principle, as far as future generations are concerned.721
The inter-generational equity is already present in the international law for a long period.
It is mentioned as far as in 1946 in the International Convention for the Regulation of Whaling, which recognised the interest of the world to safeguard ‘for future generations the great natural resources represented by the whale stocks.’722 Even the World Commission on Environment and Development has recognised that the ultimate objective of sustainable development was the ability of future generations to reach their own goals.723 The Rio de Janeiro Declaration on Environment and Development, also mentions the inter-generational equity principle.724 The inter-generational equity has further been enshrined into the preamble (or into body texts) of many international treaties such as the CBD, the Aarhus Convention on Access to Information, Public
717 E.B. Weiss ‘In Fairness to Future Generations and Sustainable Development.’ (1992) 8 (1) AUILR 19 at 20.
718 Ibid.
719 Ibid.
720 Ibid at 21.
721 Ibid.
722 See the Preamble of the international convention for the regulation of whaling, of 1946. Available at:
http://library.arcticportal.org/1863/1/1946%20IC%20for%20the%20Regulation%20of%20Whaling- pdf.pdf. (Accessed: 20 September 2016).
723 World Commission on Environment and Development: ‘Our Common Future Report’ (1987);
Available at: http://www.un-documents.net/wced-ocf.htm. (Accessed: 20 August 2016).
724 See note 706 above. See also Section 3.1.2.2 on the principles of the UNFCCC.
Participation in Decision-Making and Access to Justice in Environmental Matters,725 as well as the UNFCCC.726 The inclusion of the inter-generational equity principle in all these multilateral instruments and at last in the Paris Agreement proves sufficiently to its audience in the international environmental law.
The preamble of the Paris Agreement exhorts parties to respect, promote and consider the inter-generational equity dimension as an obligation when they are taking action to address the climate change.727 The Agreement does so in acknowledgement that climate change is a common concern for humankind.728 The UNFCCC on its side, exhorted its country parties to protect the climate system for the benefit of present and future generations of humankind based on equity and in accordance with their common but differentiated responsibilities and respective capabilities.729
In environmental related matters, Weiss argues that two dimensions are to be kept in mind in order to understand the principle of inter-generational equity, this is because one needs to remember the complex and intertwined relationship that exists within humans themselves on the one hand, and between humans and other constituents of the nature on the other hand: firstly, the relationship humans have with the natural system (of which they are a part), and secondly, the relationship humans have with the past and future generations of the living on the planet.730