3. EQUITY IN THE PARIS AGREEMENT
3.4 Loss and damage
3.4.2 Implications for equity
As it currently stands, the provision for loss and damage under the Paris Agreement is a very weak attempt at entrenching equity within the Paris Agreement. This section of the Paris Agreement, therefore, fails to establish a restorative justice conception of equity. There is no acknowledgement of the role of developed states in the harm which these states, primarily small island states, would face as a consequence of climate change. Neither does the provision create an obligation that those responsible for the majority of historical emissions must compensate those who must now suffer the consequences. The provision merely recognises the need to support and collaborate but fails to distribute any right or responsibility in this regard.
Furthermore, the provision on loss and damage cannot be said to represent distributive justice principles. The provision does not distinguish between states at different developmental levels.
There is no requirement that the responsibility for loss and damage should be in line with each state party’s level of financial and technological capacity. The Agreement only encourages cooperation and support without ensuring that those with lower levels of capacity are provided with the additional levels of support which they may require due to their low developmental status.
Despite the foregoing, the inclusion of loss and damage is in itself a move towards ensuring equity within the Paris Agreement. The states who are primarily in need of the global cooperation on loss and damage are small island states and other less developed states. In other words, this provision draws attention to a need that primarily affects developing states. It is hoped that subsequent climate change agreements will build on this and flesh out a full structure of rights, responsibilities, and the necessary financial and technology support that these vulnerable states need.
Overall, no clear conception of equity is evident in the provision on loss and damage. It entrenches neither distributive nor restorative justice principles. The provision does not distinguish between state parties with different levels of capacity or developmental needs and the implication of these differences on their responsibility for climate change loss and damage.
The provision also fails to provide some form of remedy for states who now face serious harm
173 due to climate change despite only having a very negligible contribution to the volume of global emissions.
The inclusion of Article 8 in the Agreement indicates that state parties are open to a further development of the Warsaw International Mechanism in a manner that increases action and support for loss and damage, even if this occurs on a voluntary basis.144 But as it stands, the Paris Agreement provides very little on the legal repercussions of equity with respect to loss and damage. It remains to be seen how equity, as entrenched within the climate change regime, will tackle the economic and non-economic effects of climate change loss and damage in vulnerable states.
3.5 Interim conclusion
The conception of equity within the Paris Agreement is ambiguous and filled with significant gaps. Nonetheless, the distribution of rights and responsibilities within the agreement provides an opportunity to assess its overarching conception of the principle of equity; a position revealed in provisions on issues such as climate finance, transfer of technology, emission reduction and loss and damage.
The Paris Agreement creates clear provisions on climate finance. Developed states have a clear duty to transfer finance for the purpose of climate change mitigation and adaptation in developing states. This is in continuation of their obligation under article 4 of the UNFCCC and ensures that state parties with less financial capacity to undertake climate change action are provided with necessary support. Additionally, the Paris Agreement creates a new class of climate donors, unknown to earlier climate change treaties. It encourages ‘other parties’ to keep up any existing support to states in need on a voluntary basis. The Paris Agreement makes no connection between responsibility for historic emissions and the provision of climate finance.
The Paris Agreement also acknowledges the necessity for global collaboration for the purpose of development and transfer of climate friendly technology. However, the Agreement does not create a distinct duty which obliges developed state parties to provide developing states with the required technology for climate change mitigation and adaptation. In other words, the Paris Agreement points out the necessity for technological cooperation without creating any
144 Emma Lees ‘Responsibility and liability for climate loss and damage after Paris’ (2016) 17(1) Climate Policy 3.
174 obligation for technology transfer from one state party to another. This provision fails to take into consideration that state parties have different capacities for the development of technology and there was a need to protect those parties by expressly providing for the transfer of technology. Where technology transfer is based on strictly commercial terms, climate change action would constitute an additional burden on these developing state parties.
Emission reduction targets is another issue of significance to the conception of equity within the Paris Agreement. The Agreement contains a clear differentiation of obligations between developed and developing state parties. The Agreement starts by providing that all state parties, irrespective of level of development, share in the global responsibility to ensure that the average global temperature was stabilised. However, the extent of individual responsibilities is dependent on the status of a state as developed or developing. Developed state parties are saddled with taking the lead in global emission reduction efforts by taking up emission targets.
Developing states, on the other hand, were allowed a longer duration to peak their emissions.
This distribution gives room for developing state parties to pursue their developmental objectives without any restraint from emission reduction obligations.
The last issue examined in this section is loss and damage. Its inclusion in the Paris Agreement is a first time for a climate change treaty. This represents some progress in an attempt to ensure some sort of restorative justice in order to support (small island) state parties that are most vulnerable to the consequences of climate change despite their very minimal contribution to global emissions. Unfortunately, the Agreement does not go as far as creating specific obligations on developed state parties to support any of these parties vulnerable to climate change induced loss and damage. The Paris Agreement, therefore, falls short of establishing equitable principles in the provision on loss and damage.
Flowing from the above, it is obvious that the conception of equity adopted in the Paris Agreement varies significantly from what the African state parties had sought for during the negotiations. The Paris Agreement contains no recognition of the culpability of developed states for the majority of historical emissions, which have now led to climate change. The Agreement is silent on this important fact, which is the basis of most of the positions the African state parties hold. Having ignored this responsibility, the Paris Agreement does not distribute rights and obligations in a way that ensures that the climate change ‘injustice’ and the imbalance in the distribution of the costs and benefits of climate change. The provisions of the
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