Equity and Common but Differentiated Responsibilities in International Climate Law and Policy

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1 Equity and Common but Differentiated Responsibilities in International Climate Law and Policy Dr Harro van Asselt 12 th UEF-UNEP Course on Multilateral Environmental Agreements Shanghai, 9 November 2015

2 Outline Exploring equity and climate justice Equity and CBDRRC in the UNFCCC Options for differentiation 2

3 What is equity? 3

4 Climate equity is...at the heart of international climate change law and policy...in the eye of the beholder...relevant at all scales and across time related to ambition...not just about mitigation...not the same as climate justice, though related 4

5 Types of justice Distributive justice Focus on the fairness of outcomes (forward-looking) Corrective justice Focus on ending/compensating for injustice (backward-looking) Procedural justice Focus on the fairness of the process to reach outcomes 5

6 Distributive justice and climate change: key questions What is a fair allocation of the costs of preventing climate change? What is a fair allocation of the costs of adapting to climate change impacts? What is a fair allocation of the resources available for adaptation? What is a fair allocation of emissions of greenhouse gases (1) over the long term and (2) during the transition to this longterm allocation? Source: Shue

7 Climate justice: diverging interpretations (1) in a world that aspires to such lofty ideals like global justice, equity and sustainability, this vital global common should be shared equally on a per capita basis. Agarwal and Narain, Global Warming in an Equal World (1991) 7

8 Climate justice: diverging interpretations (2) We demand to the countries that have over-consumed the atmospheric space to acknowledge their historic and current responsibilities for the causes and adverse effects of climate change, and to honor their climate debts to developing countries, to vulnerable communities in their own countries, to our children s children and to all living beings in our shared home Mother Earth. Conclusions, World People s Conference on Climate Change and the Rights of Mother Earth in Cochabamba, Bolivia,

9 Climate justice: diverging interpretations (3) the situation demands a climate regime that acknowledges the right to development, and then places that right at its structural core. The bottom line is that such a regime must secure for the developing nations a viable portion of the scant remaining atmospheric space, and in a manner that allows them to prosper within it. Kartha et al., The Greenhouse Development Rights Framework (2008) 9

10 Climate justice: diverging interpretations (4) an optimal climate treaty could well require side payments to rich countries like the United States and rising countries like China, and indeed possibly from very poor countries which are extremely vulnerable to climate change such as Bangladesh Posner and Weisbach, Climate Change Justice (2010) 10

11 From equity principles Principle Responsibility Capacity Equality Sovereignty Right to development Costeffectiveness Description The polluter (or beneficiary) pays The greater the ability to pay, the greater the burden Every person has a right to emit or to be protected from impacts; Equality of burden/effort All countries have an equal right to the atmosphere (or to be protected from impacts), based on current emission levels People below a development threshold do not have to contribute Action should be taken where it costs the least 11

12 to equity criteria Emissionsrelated Capacityrelated Needrelated Cost-related Criterion Total emissions Emissions per capita Cumulative emissions Emissions per GDP Projected emissions Luxury/survival emissions Total GDP GDP per capita Human development index Climate vulnerability Mitigation potential Implication China and US should do most OPEC should do most (followed by US/EU) US should do most Trinidad and Tobago should do most China/emerging economies need to do most LDCs exempted/do less EU, US and China should do most Qatar and Luxembourg should do most Norway should do most; LDCs do less LDCs/SIDS should do less Countries with greater mitigation potential should do more 12

13 Equity in the UNFCCC (1): Preamble Noting that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs Reaffirming the principle of sovereignty of States in international cooperation to address climate change Recognizing further that low-lying and other small island countries, countries with low-lying coastal, arid and semiarid areas or areas liable to floods, drought and desertification, and developing countries with fragile mountainous ecosystems are particularly vulnerable to the adverse effects of climate change taking into full account the legitimate priority needs of developing countries for the achievement of sustained economic growth and the eradication of poverty 13

14 Equity in the UNFCCC (2): CBDRRC Preamble in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions Article 3.1 Parties should protect the climate system 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... Article 4.7 The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology 14

15 Different perspectives on CBDR Premise Rooted in Differential treatment as a Developing countries Culpability and entitlement Obligation and liability Request Developed countries Consideration and capacity Moral responsibility and goodwill Demand 15

16 How should responsibilities be differentiated? 16

17 Types of, and bases for differentiation Basis for differentiation Type of differentiation Criteria-based Bargaining-based Between countries 1 2 Between types of contributions/effort

18 Which countries? Developed/developing? OR Small island countries; Countries with low-lying coastal areas; Countries with arid and semi-arid areas, forested areas and areas liable to forest decay; Countries with areas prone to natural disasters; Countries with areas liable to drought and desertification; Countries with areas of high urban atmospheric pollution; Countries with areas with fragile ecosystems, including mountainous ecosystems; Countries whose economies are highly dependent on income generated by fossil fuels; Land-locked and transit countries. 18

19 How can responsibilities be differentiated? 19

20 Categories of differential treatment Differential treatment Implementation Central obligations Assistance Context Subsequent base years Delayed compliance schedules Delayed reporting schedules Any other suggestions? Financial assistance Capacity building Technology transfer Others (reporting etc.) Soft approaches to noncompliance Source: Rajamani

21 Formalizing differentiation Annexes with countries - Annex I UNFCCC - Annex B Kyoto Protocol Contextual language offering flexibility - as appropriate - where relevant and to the extent possible - to the extent feasible - as soon as possible - taking into account the needs and circumstances 21

22 The evolution of differential treatment in the climate regime (1) UNFCCC/Kyoto: binary differentiation Emission reduction commitments only for developed countries Other country groupings mentioned Bali Action Plan: towards parallelism Commitments or actions for developed countries; focus on efforts rather than results Nationally appropriate mitigation actions for developing countries Copenhagen/Cancún: entrenching parallelism Self-selection of commitments/action => self-differentiation More symmetry in MRV Less emphasis on support 22

23 The evolution of differential treatment in the climate regime (2) Durban: breaking the firewall? Applicable to all No reference to equity or CBDRRC (but under the Convention ) Lima: the return of differentiation? Explicit reference to CBDRRC in light of different national circumstances adding a dynamic element 23

24 Are we seeing more or less differentiation? Is this a good or bad development? 24

25 Risks of further differentiation Weakening bargaining power of developing countries Divide and rule Solution: create issue-specific negotiation coalitions? Race to the bottom Ensuring upward symmetry: the role of review Requiring country-by-country approach Will lead to lengthy discussions and negotiations 25

26 From differentiation to graduation Source: Brazil

27 How can or should differentiation be reflected in the 2015 Paris agreement? 27

28 Thank you for your attention! 28