3. EQUITY IN THE PARIS AGREEMENT
3.3 Mitigation (emission reduction targets)
164 Paris Agreement does very little to ensure that climate change action for developing states is integrated into the need for development.
165 shall be kept ‘well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognising that this would significantly reduce the risks and impacts of climate change.’107 Individual nations are, however, given the choice to decide the extent of their contributions to the global goal.108 Unlike the UNFCCC and the Kyoto Protocol, the Paris Agreement contains a more inclusive outlook to emission reduction. Article 4(2) provides that ‘[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.’109 The responsibility for emission reduction applies to every state party and not only developed state parties. By using the word ‘shall’, it implies that the provision has binding force, and all parties are expected to submit their NDCs.
However, it is anticipated that developed states will remain at the forefront of reaching the global emission reduction goal. Article 4(4) provides that they should do this ‘by undertaking economy-wide absolute emission reduction targets.’110 In other words, while every state party has a responsibility to take some measure to ensure the reduction of global average temperature, developed states should bear the primary responsibility for achieving the global objective.
Developed states are, therefore, encouraged to undertake emission reduction efforts in the various sectors of their economies.
The adoption of the word ‘should’ rather than ‘shall’ implies that developed states are not legally bound to carry out these emission cuts. Initial proposals had used mandatory language stating that developed states ‘shall continue to take the lead’.111 This was opposed by developed states, especially the United States, which argued that such provisions would make it impossible for domestic ratification.112
It is also necessary to state that the Agreement does not create a quantifiable goal or target for each party. In other words, developed state parties, or any party at all, do not have a duty to restrict their emissions to a specific quota. While the Paris Agreement sets a global target of
‘holding the increase in the global average temperature to well below 20C above pre-industrial
107 Article 2(1)(a) of the Paris Agreement.
108 Article 4(1) and (2) of the Paris Agreement.
109 Article 4(2) of the Paris Agreement.
110 Article 4(4) of the Paris Agreement.
111 Adoption of the Paris Agreement, Proposal by the President, UNFCCC Conference of the Parties, Draft
decision-/CP.21, FCCC/CP/2015/L.9 (12 December 2015) article 4.4
https://unfccc.int/resource/docs/2015/cop21/eng/ l09.pdf (accessed 10 February 2021).
112 Harald Winkler ‘Mitigation (Article 4)’ in Klein et al (n16 above) 151.
166 levels’, each state is left to decide its national target. It is a bottom-up approach. As Winkler notes, the provision of the Paris Agreement on emissions reduction is short on many important details.113
In conclusion, the Paris Agreement places the responsibility to ensure a reduction in the global average temperature on all state parties. Every signatory, whether developed or developing, shares in this obligation. However, developed states are expected to take the lead in these emission reduction attempts and undertake economy-wide emission reduction targets. Even at that, the Paris Agreement does not go as far as to create clear obligations for developed states to reduce their emissions, it says they ‘should’, rather than ‘shall’ do so.
3.3.2 African state parties’ obligations
As stated above, the Paris Agreement provides that all state parties shall undertake responsibility for the reduction of the level of global emissions.114 This implies that, broadly speaking, African states also have a responsibility under the Paris Agreement to make efforts targeted at contributing to the global emission reduction goals. This means that African states should also begin to seek ways to reduce their emissions or remove such emissions through sinks.
However, the Paris Agreement acknowledges the developmental needs of developing states and provides that emission peaking, and cuts, will take a lengthier period for developing states.115 They have no obligation to undertake immediate emission reduction efforts. Their current emissions can remain steady or increase in line with their developmental needs and they would not be seen as breaching any provisions of the Paris Agreement.
This must, however, not be mistaken for an outright lack of obligation. African states may set less ambitious, and longer targets, but cannot refuse to set a target. As seen in the second part of article 4(4), developing states should focus on mitigation efforts and gradually advance to reducing their emissions in all sectors. This implies that although African states are allowed a longer duration before their emission levels must begin to drop, they are required to have emission reduction goals even if the timeline for such goals is further in the future.
113 Ibid.
114 Article 4(1) of the Paris Agreement.
115 Article 4(1) of the Paris Agreement.
167 In conclusion, the Paris Agreement creates no emission reduction obligations for African states.
While they share a general sense of responsibility for achieving the global target and ensuring a reduction in the global average temperature, they do not have to undertake economy-wide emission reductions. African states, like other developing states, are allowed a longer period before they need to ensure that they peak their emission levels. For now, they are allowed to increase their emissions as may become necessary in order to meet their developmental needs.
They must, however, show that they will make progressive moves towards emission reductions in their various states. The only set of developing states exempted outrightly from showing any commitment towards emission reductions are the least developed states and the small island states.116 These groups of states may devise policies, plans and actions for reducing their emissions peaks and cuts but are not legally bound to do so under the Paris Agreement. The Paris Agreement obliges them instead to focus on mitigation efforts.117
3.3.3 Implications for equity
The obligation to reduce emissions under the Paris Agreement reflects a distributive justice conception of equity. The responsibility to reduce global emissions is shared among state parties in accordance with their needs. Different groups of states undertake different levels of obligations in line with their level of development. While developed states are encouraged to lead with economy-wide emission reduction targets, their developing counterparts are allowed longer period to peak their emissions while the least developed group of states have no obligation to submit any emission reduction strategies or plans.
This distribution brings the obligation of each group of states in line with its developmental needs. This is specifically stated in article 4(3), which states that each party’s national contribution shall reflect their different national circumstances. It recognises that it would be unfair to place the same emission obligations on all parties without due regard to the fact that certain states have needs that would require them to increase their emission levels.
In conclusion, an examination of the Paris Agreement’s distribution of emission reduction obligation reveals a distributive justice conception of equity. Obligations are distributed according to the needs of each group of states and is aimed at ensuring that the condition of
116 Thirty-three of Africa’s 54 countries, over 60 per cent, belong to this group.
117 Article 4(4) of the Paris Agreement.
168 those who are less well-off is improved. Although the Paris Agreement creates a general responsibility for all state parties to participate in mitigation and emission reduction efforts, specific responsibility is distributed in line with a state’s developmental and national needs.