Differentiation in the Paris Agreement

In: Climate Law
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  • 1 Professor of Law, University of Oslo, Department of Public and International Law, and Center of Excellence ‘PluriCourts’
  • | 2 Head of the Division of Climate and Ozone, Ministry of Foreign Affairs, Brazil,
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The need for equitable effort-sharing lies at the heart of the global response to climate change. Yet, until the very moment of the adoption of the Paris Agreement, the question of differentiation between the state parties remained controversial. This article seeks to examine the contemporary understanding of the concept of differentiation, as finally reflected in the Paris Agreement, and to track the concept’s negotiation history leading up to the Agreement. The authors argue that differentiation between parties in the Paris Agreement is nuanced, balancing different considerations for each of the Agreement’s elements. Rather than taking a non-differentiated or purely self-differentiated approach, as expected by some, the Agreement sets out the opposite: it allows for differentiation along a much broader set of parameters, in a manner that allows for more diversity and dynamism, while building on the normative legacy of the Convention. The article analyses differentiation as reflected in the Agreement in three different, but interconnected ways: First, on a principled basis, reflecting common but differentiated responsibilities and respective capabilities, in the light of different national circumstances; second, on the basis of the legal content of various provisions of the Agreement, in particular on mitigation, finance, and transparency; and third, on the basis of the parameters of progression and highest possible ambition, which represent new and dynamic aspects of differentiation. By doing so, the Agreement enhances differentiation to an unparalleled extent.

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