Abstract/Summary

In a departure from the largely top-down approach United Nations Framework Convention on Climate Change (UNFCCC), and the Kyoto Protocol, the new climate treaty the Paris Agreement (PA) created a bottom-up approach where the obligations and commitments emanating from the international agreement were created through a self-assessed contribution in the form of Nationally Determined Contributions (NDCs). The Agreement also envisaged that its burden sharing efforts to address climate change and implementation will be guided by equity, and the principle of common but differentiated responsibilities, in the light of different national circumstances (CBDRRC). It also recognised the intrinsic relationship between raising ambition, climate justice and equitable access to sustainable development. Despite the explicit inclusion of equity, CBDRRC, and fairness considerations under the climate regimes, the application of these guiding principles has remained politically controversial and central to the North-South divide under the UNFCCC. The PA only requires countries to reflect equity and fairness in their self-defined contribution. The question remains how to ensure equity in such an agreement which is centred around self-assessed obligations. Although the enforceability of self-determined obligations is a broad problem, equity and fairness issues are further complicated in part by the fluidity of the concepts, varying parameters of assessment utilised by countries in their NDCs, and the structural and institutional limitations of the Agreement. A possible way might be to utilise the interpretative and quasi-adjudicatory role of inbuilt mechanisms of the Agreement to evaluate the fairness and equity of countries' contributions based on their NDCs and their own equity parameters. The PA aims to achieve the collective targets notably the temperature goal to hold average temperature increases to 1.5 degrees Celsius above preindustrial levels, and the adaptation and finance goals – that need to be implemented to curb climate change through the accumulation of efforts contained in the NDCs of countries. The progress made towards the achievement of these collective targets is assessed by the inbuilt instrument of the Global Stocktake (GST), which promises to take account of the collective contributions made vis-a-vis the PA's long-term goals and in light of equity. 3 The GST, however, is not built as an individual accountability mechanism to look at what each Party has contributed to the global effort. The Compliance Mechanism, on the other hand, is designed to consider individual Party compliance issues. The Mechanism can be employed to weigh the equity and fairness of individual contributions made by countries. The question, however, is how the Compliance Mechanisms of the Paris Agreement, currently under development, can assess whether the self-determined obligations fulfil the equity principle either in terms of general expectations or the self-determined parameters countries identify in their NDCs. What role does the Compliance Mechanism – and by extension, the Compliance Committee – play in determining (non-)compliance with the PA's equity requirements? The Thesis examines to what extent the newly established Compliance Mechanism (CM) as an inbuilt framework of the Paris Agreement could facilitate the operationalisation of equity and climate justice. As the idea of operationalising equity and climate justice within the framework of the compliance mechanism is a new topic, this study will contribute a strong analytical and conceptual framework to the field. The Thesis proposes three possible analytical models to operationalise the consideration of equity and climate justice by the PA’s Compliance Mechanism. The procedural model sees the role of the Mechanism limited to the assessment of the fulfilment of procedural obligations related to equity, including communication of the reflection of countries on the equity and fairness of their contributions. The model may also extend to the assessment of other procedural obligations that ensure equity, such as the inclusiveness of the national processes followed in designing the NDCs. The substantive model anticipates the involvement of the CM in the assessment of the equity and fairness of a Party’s contributions in their NDCs based on substantive criteria. Considering the design of the CM that does not involve an adversarial contestation of the obligation of countries, a strong mechanism must be in place to ensure minimum standards are maintained to achieve the overall goal of the Agreement. The substantive model, therefore, proposes a minimum objective standard of equity that the CM can use to determine compliance with equity obligations under the Agreement while respecting the facilitative nature of the PA Compliance Mechanism. The third model is the integrated model, which incorporates elements from the two previous models in response to the equity parameters and definitions adopted by different countries in their 4 NDCs. This model will be more compatible with the bottom-up ethos of the Agreement and the nature of the NDCs. By incorporating a study of the architecture of the PA's CM, the substantive provisions of the Agreement and lessons from other treaties, including the Kyoto Protocol compliance mechanism, the Thesis will contribute to the understanding of how to measure and assess equity in international climate change law. While some current works on equity and justice in climate change agreements have looked at theoretical and methodological issues with assessing equity of climate action this Thesis will provide options that deal with institutional, procedural, and legal considerations within the PA. The success of the PA and its goals will depend on the Parties' compliance. The overall narrative of facilitating compliance is critical to the thesis. In any agreement with inbuilt equity considerations, and more significantly in a self-defined obligation centred agreement with inherent differentiated expectations, compliance can help ensure equity. In the Paris Agreement, the achievement of equity and climate justice is further promoted when the Compliance Mechanism is able and empowered to assess the equity and fairness of climate action.