1. Context and Background: The UN Framework Convention on Climate Change (FCCC), 1992 is established on two key principles – One, that the world community needs to make greater efforts for stabilizing greenhouse gas concentrations in the atmosphere; Other that the goal of stabilizing greenhouse gases in the atmosphere with the objective to protect the climate system has to be achieved on the basis of ‘equity’ and in accordance with ‘common but differentiated responsibilities and respective capabilities’ commonly known as CBDR-RC. The Convention acknowledges that while climate change is a global issue of common concern to all the countries in the world, rich nations have historically contributed more greenhouse gases to the atmosphere than the developing and least developed countries. This understanding got reflected in the form of Annex-I of the FCCCcomprising a list of wealthy nations that werecalled upon to take concrete action.. Subsequently, in the first CoP of the FCCC, the Parties agreed to what is known as the Berlin Mandate, which meant that the Annex-I countries alone would take on emission reduction responsibilities. The Berlin Mandate was further codified with numerical national targets and timetables in the 1997 Kyoto Protocol wherein the Annex-I countries were required to undertake quantified targets.
2. What does the Convention say on equity? UNFCCC provides that the operationalization of international climate regime shall be guided by the Principles under the Convention. Thus, the Article 3 (Principles) of the Convention stipulates that In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided by the Principle that they should protect the climate system for the benefit of present and future generations of human kind on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Thus ‘equity’ by design, not only serves as the fundamental conceptual framework but is the fundamental operational principle for the achievement of objectives under the FCCC.
3. Is there more to it? – Equity not only in sharing global carbon space but intra and inter-generational equity: Under the UNFCCC, equity principle has two key elements- equity per se and CBDRRC-while equity is a larger principle, CBDRC came to be known as the operational principle reflected in the differentiation created between Annex and non Annex countries. . It is wellknown that the preamble of a legal instrument reflects the intention and spirit behind the law being enacted by that instrument. A conjunctive reading of the equity principle along with the Preamble of the FCCC shows that equity within the framework of the Convention is not limited to sharing of global carbon space among different countries but encompasses intra-generational and intergenerational equity as the Preamble of the Convention recalls decisions of the UN General Assembly on protecting global climate commons for present and future generations.
4. Kyoto to Durban- Emerging views on ‘different and contemporary realities’: By the year 2005, when Kyoto Protocol entered into force, it is argued that the carbon emissions of many non-Annex-I countries had increased substantially. This according to some countries reflected a ‘different reality’ based on which even non-Annex 1 countries and economies in transition are required to undertake similar measures for GHG reductions under the FCCC. Developing countries and economies in transition argue that given the historical responsibility of developed nations, acknowledged and articulated in the Convention at various places including under the Principles of equity and CBDR, developed countries alone should undertake binding obligations. It is further argued by the developed countries that the annual negotiations resulting in Copenhagen Accord, 2009, the Cancun Agreements, 2010 and the Durban Mandate 2011 put together blurred the distinction between Annex-I and non-Annex-I countries and the stage is set for negotiations on a new climate agreement based on ‘contemporary realities’. This according to some leads to the “recasting of differentiation” wherein the contemporary realities and the current level of emissions by developing countries have to be borne in mind while crafting a new climate agreement.
5. ‘Equity’ as the nucleus of burden sharing architecture in Climate Negotiations: Climate negotiations have shown divergent position of Parties on numerous issues, with ‘differentiation’ based on the principles of equity and CBDR-RC being the nucleus. Constrained by the international legal framework consisting of a universally binding instrument in the form of UNFCCC, the Kyoto Protocol and numerous COP decisions that contain explicit clauses on equity and CBDR-RC, the central negotiating premise for negotiations has been the basis on which the emission-reduction burden can be shared across countries (burden sharing architecture). Historical responsibility has been yet another premise, drawn upon equity argument that the countries have brought into negotiations arguing vociferously that grounds for differentiation between developed and developing countries in terms of sharing emission-reduction burden shall be based on the historical contributions to the degradation of global environment. Elements of differentiation, it is argued, comprise many aspects such as level of economic development, special and differing vulnerabilities, for example, of small island states and the historical contribution of countries to the climate problem. The differentiation debate, however, has been more focussed on mitigation targets which then lead to differentiation in legal obligations and legal form of the future climate regime.
Developed countries and major economies argue that all major emitters, including China and India, should take binding commitments and mitigation targets. Their arguments are based on the premise that the Convention and its Principles are dynamic in nature and have to be interpreted in the light of contemporary economic and changing geopolitical realities.
6. What happened at Durban?: The Seventeenth session of the Conference of the Parties (COP) to the FCCC held at Durban from 28 November to 9 December 2011, resulted in three key decisions: i) decisions to implement the 2010 Cancun Agreements, ii) extend the Kyoto Protocol, for a second commitment period; iii) launch a new process to negotiate a post-2020 climate regime. These decisions to be taken forward by the Ad-Hoc Working Group on the Durban Platform for Enhanced Action are intended to craft the agreement that will govern, regulate and incentivize the next generation of climate actions. It is argued by scholars that the text of the Durban Platform indicates leanings towards creating symmetry in climate obligations as against the differentiation as per the equity principle.
The Durban Platform decision launched ‘a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, through the Ad Hoc Working Group on the Durban Platform for Enhanced Action. In the view of the developed countries, the economic and political realities have evolved since the FCCC was negotiated in 1992, and common but differentiated responsibilities must be interpreted as a dynamic concept that evolves in tandem with changing economic and other realities.
Remarkably, the EU, quite different from its earlier stand in climate negotiations insisted upon that any future climate agreement must contain a broader spectrum of differentiation in the obligations among Parties. India on the other hand argued that including a spectrum of differentiation applicable to countries such as India would violate the equity principle under the Convention and this may be possible only after an amendment of the Convention is carried out. Consequently, a text was drafted such that it was rooted in the Convention, yet would take care of the growing displeasure of the EU and other developed countries over the historical position over differentiation and equity. This, it was believed, would hold efforts to reinterpret and qualify the equity principle at bay, or at least leave the issue of ‘differentiation’ to be resolved in the future. Nevertheless, divisions on the application of this principle signals a recasting of differentiation in the future climate regime
7. The Follow ups: Doha, Warsaw and Lima: Doha conference, 2012, is considered to erect milestones along the way up till the Paris Agreement to be agreed by the Parties in 2015. Parties agreed to consider ‘elements for a draft negotiating text’ no later than the Lima conference, 2014, ‘with a view to making available a negotiating text before May 2015. The Doha Conference, considered as the gateway to necessary greater ambition and action on all levels is considered to have strengthened the resolve and set out a timetable to adopt a universal climate agreement by 2015, which will come into effect in 2020. The Doha Conference also marked the completion of the work under the Bali Action Plan. Importantly, it launched a new commitment period under the Kyoto Protocol, thereby ensuring that this treaty's important legal and accounting models remain in place and underlining the principle that developed countries lead mandated action to cut greenhouse gas emissions.
The Warsaw Conference aimed at creating conditions necessary to reach agreement in 2015, marked the halfway point from Durban Conference (2011) that launched a process to negotiate a Protocol, another legal instrument or an agreed outcome with legal force and the Paris Conference to be held in 2015. In other words it meant to continue negotiations that marked the halfway between the work of the ADP and its scheduled end. At Warsaw parties were invited to initiate/intensify domestic preparations for ‘intended nationally determined contributions’ and thereby enabling an assessment of the work of ADP to be completed by 2015. The trends, however on the architecture and approaches for the 2015 Climate Agreement emerged during Warsaw as the submission by various parties reflected varied thinking on the top-down, bottom up and hybrid approaches. It is argued since Warsaw that the hybrid approach is the most likely approach to be adopted for arriving at a consensus on a legally binding Climate Agreement. The ongoing COP 20 in Lima, Peru, based on the submissions and negotiating stands taken by governments of 200 countries, is expected to yield the first draft of the slated 2015 Climate Agreement.
Article 3, UNFCCC, 1992
Article 3 (1), UNFCCC, 1992
It is also pertinent to note that CBDR under the UNFCCC is not altogether a new principle or result of a creative imagination of conservationist states. The CBDR principle was adopted as Principle 7 of Rio Declaration wherein states were attributed the differential responsibility in view of their different contributions to global environmental degradation. Since then, the Principle had evolved progressively and consistently since 1980’s leading to the adoption of UN General Assembly Resolution 44/228 that explicitly attributed historical responsibility for certain global environmental problems to developed countries.
Para 8, UNFCCC, 1992: Recalling the provisions of General Assembly resolution 44/228 of 22 December 1989 on the United Nations Conference on Environment and Development, and resolutions 43/53 of 6 December 1988, 44/207 of 22 December 1989, 45/212 of 21 December 1990 and 46/169 of 19 December 1991 on protection of global climate for present and future generations of mankind,