Part III Conceptual Pillars, Ch.19 Differentiation

This chapter explores differential treatment, which is one of the main instruments that exist in international environmental law to foster equity. It builds on ideas of global distributive justice and helps to rebalance some of the most visible inequalities arising between formally equal states of very different size, power, and natural resource endowments. The principle that reflects differential treatment in international environmental law is that of common but differentiated responsibilities (CBDR). The chapter discusses the conceptual bases for and development of differential treatment. This confirms the significance of the break proposed to the traditional international legal framework and explains the continuing opposition to differential treatment by some countries. The chapter then highlights the different manifestations of differential treatment in international environmental law and shows that differential treatment pervades the whole field. It also looks at some of the critiques of differentiation and the forms of differential treatment that have evolved over the past couple of decades.

Climate Politics and the Crisis of the Liberal International Order

The election of Donald Trump brought disarray to the climate change regime. The changes in what was up to then a promoter of the liberal international order (LIO) exacerbated existing tensions while creating new ones. This paper investigates how that challenge impacted the behaviours of Brazil, China and the European Union (EU) by comparatively analysing their dissimilar positions with respect to three indicators before and after Trump’s coming into power. These indicators are individual pledges and climate-related policies; approaches to climate finance; and the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC). The analysis first shows how the US started eroding the broader LIO and the climate change regime to then delve into the behaviours of the three respective key players concerning climate talks. I sustain that the EU, despite its inner divisions, is already counteracting Washington, whereas China is combining a pro-status quo position based on a rhetorical condemnation of the United States. Brazil, in turn, had a transition towards a climate-sceptic government, shifting from being a cooperative actor to abdicating hosting the COP25.

Fair National Greenhouse Gas Reduction Targets Under Multiple Equity Perspectives - A Synthesis Framework

Equity is one of the key principles underpinning the global climate regime and is all the more essential given the heterogenous, self-differentiated nature of the Paris Agreement. The scientific community has proposed several effort-sharing schemes to operationalise equity – reflecting not only the multi-faceted nature of the problem but also a long history of disagreement that continues to date. We outline a synthesis framework that draws on existing estimates in the literature to develop a “fair share range” for each country within which we identify a common position, which, when applied to the ranges of all countries, results in the collective achievement of the desired temperature goal. A series of methodological choices regarding the treatment of the underlying literature and translation into a temperature equivalence are tested. We demonstrate the consistency of this framework (across different methodological choices) with the principle of “Common but Differentiated Responsibilities” – members of the OECD have the most stringent allocations, while only a few African and Asian countries (including India) have emission allocations that are above their 2010 emission levels. A few OECD members, including the European Union and Great Britain, have emission allocations in 2030 that are either close to, or less than zero. Consistency with their fair share of mitigation will require them to provide appropriate levels of international finance and support to facilitate emission reductions in developing countries. These conclusions are robust to various methodological choices.

Changing Climate, Unchanged Mandate: bric Countries in the UN Security Council

The UN Security Council has turned its attention to the link between climate change and security several times. Its members and other UN member states participating in discussions have remained divided over the Council’s engagement. Among vocal opponents are the bric countries: Brazil, Russia, India, and China. This article examines the argumentation of these countries during seven UN Security Council meetings between 2007 and 2020. The bric countries often concede that climate change is a threat, but they strongly resist the idea that such a threat could be addressed by the Council. I use a Critical Legal Studies approach to analyse how the bric countries bolstered their key argumentation before the Council. I find that the bric countries exploited a ‘background rule’ concerning the unsc mandate and used it to reaffirm the limits on the Council’s action. They were thus able to avoid self-contradiction and strengthen their political position through a legal argument. This complemented other objections they raised against the Council’s involvement: its insufficient expertise, inefficient tools, and the inapplicability of the principle of common but differentiated responsibilities to its decision-making.

Common but Differentiated Responsibilities and Respective Capabilities: Did This Principle Ever Exist?

This article argues that the UN Framework Convention on Climate Change (UNFCCC)’s conception of common but differentiated responsibilities and respective capabilities (CBDRRC) was never effectively implemented through the Kyoto Protocol. The investments under the Kyoto Protocol’s Clean Development Mechanism suggest that CBDRRC has been used by developed countries to buy a “right to pollute”, i.e., maintaining or even increasing their greenhouse gas emissions, while investing in clean energy in developing nations, thus defeating the essence of CBDRRC as intended under the UNFCCC. Second, it points out that the Paris Agreement reflects a significant shift in the CBDRRC, both in terms of its textual understanding as well as its implementation. A qualifier, “in the light of national circumstances”, was added to the principle of CBDRRC in the Paris Agreement, allowing a form of voluntary self-differentiation. This qualifier diluted a top-down, objective analysis of States’ commitments. For several scholars, this shift has meant a softening of the principle, making the “differentiation” more dynamic and flexible. In the authors’ opinion, the qualifier is a fundamental modification of the principle to make it politically more palatable. It completely disregards the notion of historical responsibility for climate change, which was the cornerstone of CBDRRC as conceived under the UNFCCC. Therefore, rather than presenting a more flexible understanding of UNFCCC’s conception of CBDRRC, the Paris Agreement marks a total departure from it. Lacking an explicit redefinition of the principle of CBDRRC, it is misleading to contend that the Paris Agreement is still anchored in it.