Why bury CBDRRC alive?
A response to Katrin Kohoutek
Although there is a need for a new dynamic, the principle of common but differentiated responsibilities and respective capabilities remains the cornerstone of the on-going climate negotiations.
There is no denying that historical responsibilities of northern countries have played a central part in the negotiations leading to the adoption of the UNFCCC and Kyoto Protocol. Yet, taking them as the founding element of the principle of common but differentiated responsibilities and respective capabilities (CBDRRC) would be going too far. CBDRRC are indeed built upon a common responsibility of all States to prevent dangerous anthropogenic interference with the climate system (art. 2 UNFCCC) and differentiated responsibilities in tackling climate change. But when developed countries agreed to take the lead in this fight (art. 3§1 UNFCCC), it was understood that differentiated responsibilities would be based on present contributions to pollution and differences in capabilities to act. Thus, although historical responsibilities are still often raised and constitute a very important aspect of on-going negotiations, the CBDRRC debate is much larger.
Yet they raise a very interesting question: are we witnessing the funeral of CBDRRC?
Knowing that this principle appears around 40 times in the Geneva negotiating text, along with equity, the first answer that could be made is no. Getting deeper, it seems that the question of the continuum of CBDRRC in the agreement to be must be separated from the question of the design of the new climate regime.
I°) The continuum of CBDRRC in the Geneva text
The Geneva text shows that the concept of CBDRRC is still very much embroidered in the fabric of the climate regime. Thus, various options regarding the general objective of the agreement – whether it is achieving low carbon economies and/or limiting the global temperature increase to 2°C – often refer to CBDRRC. Then, the principle appears in all sections of the text, especially in sections relating to commitments. Here, numerous options show that developed countries should still be taking the lead in mitigating climate change. Meanwhile, it is still the basis of provisions of support to cover parties’ needs, whether it is financial support, technology transfer or capacity building.
Much more than the concept itself, it is on the scope of CBDRRC that negotiations are focusing. Many parties indeed feel that CBDRRC must take into account the evolution in parties’ national circumstances since 1992 if it is to remain an effective element of the regime. For instance, there are arguments to move towards a regime in which all parties come forth with a mitigation contribution (Geneva text, paragraphs 13-16). There, differentiation would only apply to the scope and extent of the contribution. Thus, developed countries could still take the lead but all parties would be taking part in the effort. On the same line, it is often asked that parties in position to do so should participate in climate finance regardless of the fact that there are developed, emerging or developing countries (Geneva text, paragraph 34).
Thus, the whole debate is about having CBDRRC evolving through time without moving away from the spirit of the UNFCCC. But even if the scope of CBDRRC changes in the Paris Agreement, this cannot be taken as the death of the concept itself, which will be an important part of the new agreement, but rather as a new lecture of the principle.
II°) CBDRRC and the design of the new climate regime
Even though there are still many diverging views on this aspect, it is true that the approach of the Geneva text is different from those of the Convention and the Protocol in the sense that it is based on a bottom-up approach through nationally determined contributions.
It is of course possible that the aggregate effect of parties contributions will not be sufficient to meet the 2°C goal. Yet, this cannot be confirmed until all contributions are on the table. But more importantly, one needs to ask this question: what was there before this Geneva negotiating text that ensured keeping on track with the 2°C objective?
The Convention did not include this specific objective but led instead to the adoption of the Kyoto Protocol. Yet, top-down commitments under Kyoto – meaning, internationally determined binding emissions reduction targets and commitments to implement them – did not put the world on track with the 2°C goal since many major emitters did not have commitments under the Protocol and others did not meet theirs. Then, the Doha Amendment was adopted but it has not entered into force and major emitters are still not part of it. It is one thing that top-down climate action did not achieve success, but perhaps it is too early to conclude that bottom-up action – or nationally determined contributions – will also fail. Even if the first round of contributions does not put the world on the path to the 2°C goal, what is important is to build rules that will allow the regime to get back on track with it in the near future. This is precisely the meaning of many of the provisions that are negotiated, such as the obligation to submit and maintain mitigation commitments, to ensure progression from one contribution to the other, to follow a robust MRV system, to follow common accounting frameworks and so on. Even if in the end it is decided that contributions are not inserted within the Paris Agreement, a robust and well-crafted set of rules could ensure the effectiveness of the regime.
In any case, the question to know whether or not the new regime will succeed in curbing emissions, reaching the 2°C goal, and moving towards low carbon economies is entirely different from the question of the continuum of CBDRRC in the future agreement. Various tools that could make the future agreement more effective than others agreements have been appear in some of the options of the negotiating text. Furthermore, it seems that there is a willingness of major emitters to engage in substantive negotiation. So if success cannot be certain, failure cannot be announced either.
Meanwhile, the continuum of CBDRRC is already ensured by the negotiating text and by parties themselves, which are only calling for a more pragmatic implementation of differentiation. Thus, let’s not burry it alive.
Thomas Deleuil holds a PhD in international environmental law (Aix-Marseille University) and is legal advisor to the French climate negotiating team. The French Ministry of Foreign Affairs does not support or refute these opinions. They are to be considered as those of the author.
Cite as: Thomas Deleuil, “Why bury CBDRRC alive?”, Völkerrechtsblog, 4 March 2015, doi:10.17176/20170203-143235.