Obstacles on the road to an effective legal agreement in Paris – Part Two

July 29, 2015

Posted by: Frances Lawson

With the submission of Parties’ mitigation commitments gathering pace, the obstacles to an effective legal agreement at the 21st Conference of the Parties are becoming ever clearer. Below is the second of a selection of the most contentious issues that remain to be resolved if the new agreement is to be credible and effective.


The concept of differentiation, a succinct way of expressing the ‘principle of common but differentiated responsibilities and respective capabilities’ (CBDR&RC), is one of the two most highly charged and sensitive issues in the climate change negotiations. It refers to one of the original, defining features of the climate change regime. The underlying rationale is simple, and widely accepted – those countries that are defined as ‘developed’ should bear the lion’s share of the responsibilities under the Convention because they have contributed most to global emissions to date by industrialising first (the principle of historic responsibility).

The distinction matters. Under the differentiation principle, developed countries should:

1. Bear the primary responsibility for mitigating climate change by reducing their greenhouse gas emissions;
2. Provide support to enable those countries defined as ‘developing’ to transition onto a low-carbon pathway;
3. Provide support to enable those ‘developing’ countries to adapt to the impacts of climate change.

‘Developing’ countries for their part are encouraged to undertake mitigation and adaptation actions, but there is no obligation to do so, and their actions are contingent upon developed country support. The Convention is therefore characterised by a stark dividing line that separates the roles, rights and responsibilities of developed and developing countries.

Herein lies the problem –when the Convention was drawn up, the list of ‘developed’ countries was determined largely according to membership of the OECD (Organisation for Economic Cooperation and Development). Almost all countries not on that list were bundled into the ‘developing country’ category. This has left a lot of anomalies – out of the 194 Parties to the Convention, only 43 are in the ‘developed’ country category. The overwhelming majority – more than 150 – are defined as ‘developing’. Singapore is a developing country under the Convention, despite being a highly prosperous nation. So are the United Arab Emirates, Qatar, Saudi Arabia, South Korea and Brazil, while Belarus and the Ukraine – arguably economically poorer – are ‘developed’. Most contentious of all, China remains a developing country, despite its GDP now outstripping that of many ‘developed’ countries.

The ensuing difficulties are obvious – smaller ‘developed’ nations such as Estonia or Greece wonder why they are expected under the Convention to provide support (particularly finance) to richer compatriots such as China, Brazil or Qatar, and feel equally aggrieved that they are pressurised to reduce emissions whilst these other countries with a far more significant emissions portfolio are allowed to continue to increase them for the next few decades.

Why indeed? In addition to errors of judgment in the initial designation of ‘developed’ versus ‘developing’ countries, the draftsmen of the 1992 Convention did not anticipate the changing of geopolitical realities that has occurred over the past 23 years. There is therefore no mechanism in the Convention for a ‘redrawing of lines’. Developing countries can of course opt to change their categorisation and become ‘developed’; given the attendant responsibilities and financial obligations, however, little wonder that almost none of them do.

With so much at stake in the ‘developed’ versus ‘developing’ country distinction, it is one of the most closely guarded aspects of the regime. Any mention of altering the status quo is met by fierce opposition from those ‘developing’ countries with the most to lose by being redefined as ‘developed’ – particularly China and Brazil. Yet with the world’s emissions increasingly coming from those on the ‘developing’ side of the dividing line, and with those countries displaying levels of wealth and economic growth well in excess of the ‘developed’ countries that are meant to support them, maintaining the status quo is becoming increasingly untenable.

More importantly, from a climate change perspective, the current differentiation under which less than one-third of Parties to the Convention are required to reduce their net emissions, is highly unlikely to deliver the reductions that the science tells us we need to limit warming to below 2 degrees Celsius.

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