Introduction
The international climate change treaty regime imposes different duties in respect of climate action on different groups of States, which is commonly described with reference to the principle of common by differentiated responsibilities and respective capabilities (CBDR-RC).
The degree of differentiation has arguably lessened from the earlier UN Framework Convention on Climate Change (UNFCCC) and Kyoto Protocol to the Paris Agreement (PA): ‘the ‘dichotomous interpretation’ of CBDR-RC is said to have given way to the ‘subtle differentiation’ of the Paris Agreement’. Nevertheless, important differences persist between groups of States in relation to their duties of financial assistance: under UNFCCC and PA one group of States shall provide such assistance and perform associated procedural requirements while another group is entitled to receive such resources, through bilateral and specifically multilateral mechanisms.
In its recent Advisory Opinion on Obligations of States in respect of Climate Change, the International Court of Justice (ICJ or Court) made an important authoritative interpretation as regards the categorisation of States for these purposes. This blog considers whether the Court’s statements bring the legal clarity to the matter of differentiation of duties of States in the international climate change regime and PA in particular and how much room is left for political debates.
Groups of States in the international climate change regime
The UNFCCC and the Kyoto Protocol differentiate duties of States with reference to UNFCCC Annexes. This has resulted in the creation of three groups of States: so-called Annex I, Annex II and non-Annex I parties, with differing duties.
UNFCCC contains two additional mechanisms relevant for this categorisation: first, it allows non-Annex I parties to bind themselves with certain UNFCCC obligations (Article 2(g) UNFCCCC) by virtue of which this State party becomes an Annex I party for purposes of the Kyoto Protocol. Second, UNFCCC establishes a procedure for amending its Annexes. Several COP decisions were adopted so far to do so: (1) to add Croatia, the Czech Republic and Slovakia (instead of Czechoslovakia), Liechtenstein, Monaco, and Slovenia to Annex I (4/CP.3); (2) to exclude Turkey from Annex II (26/CP.7); (3) to add Malta to Annex I (3/CP.15); and (4) to add Cyprus to Annex I (10/CP.17). This indicates two important practices: the amendment process is highly political (as the Turkish case illustrates), and there is demand for amendment to Annex categorisation.
Unlike UNFCCC and the Kyoto Protocol, PA follows a different approach: it refers to ‘developed’ and ‘developing’ country parties without giving much detail about how each group should be constituted. On top of that, a qualification is added to the CBDR-RC principle: under the preamble and Article 2 of the PA, this principle ‘will’ apply ‘in light of different national circumstances’. Rajamani notes that this phrase was a compromise reached between the US and China and that:
The qualification of the principle by a reference to ‘national circumstances’ introduces a dynamic element to the interpretation of the principle. As national circumstances evolve, so too will the common but differentiated responsibilities of States.
The thrust for dynamism presumably should have an impact on the categorisation of States for purposes of the financial assistance obligations. This notwithstanding, the PA text has received heterogenous interpretations in this respect as evidenced by positions States took in the recent ICJ proceedings. For example, Argentina argued that UNFCCC and PA should apply the same categorisation–the one based on UNFCCC Annexes. See Argentina’s written statement (para 40):
Countries’ categorization as was agreed in the UNFCCC and its Paris Agreement must be respected. Moreover, the special needs and circumstances of developing countries must be considered and any new category of countries that do not reflect the consensus of the international community shall be avoided. The first and biggest categories of countries in UNFCCC are “developed” and “developing countries”. While “developed countries” are included under “Annex I”, “developing countries” are “Non-Annex I”.
Other States such as South Africa and Japan supported a more dynamic reading of the PA:
The obligation to provide financial resources under Article 9(1) of the Paris Agreement applies to developed country Parties. However, the terms “developed country” and “developing country” are not defined in the Paris Agreement. Therefore, it is submitted that these classifications are dynamic, and thus more countries may identify as developed country Parties in the future, which will have the resultant effect that this obligation will apply to those Parties if and when they identify as a developed country Party.
On the basis of the language of the provisions of the relevant conventions, Japan considers that CBDR-RC cannot thus constitute a basis for holding developed countries solely responsible for climate change and for arguing for further mitigation actions and financial assistance solely by developed countries, while avoiding constraints deriving from climate change treaties for other States. On the contrary, differentiation in the climate change regime as encompassed in the Paris Agreement is flexible (as it depends on the nature of the obligation considered) and dynamic (as it may evolve in time).
In this context, important questions arise: how does a State’s categorisation as a ‘developed’ or ‘developing’ country Party change? Should this result from a political process (e.g., amendments to UNFCCC Annexes), self-labelling (as South Africa suggests) or automatically by virtue of the change of the States’ circumstances? In this connection, it is important to note that the transition can be both from the ‘developed’ to ‘developing’ or from the ‘developing’ to ‘developed’ status.
The Court’s Opinion
The Advisory Opinion contains important statements clarifying the scope of dynamic categorisation under PA. In para 226, the Court states (emphasis added):
… it is observed that [CBDR-RC], which also features in the Framework Convention and COP decisions, has been formulated differently in the Paris Agreement through the addition of the phrase “in the light of different national circumstances”. In the view of the Court, the additional phrase does not change the core of the principle of common but differentiated responsibilities and respective capabilities; rather, it adds nuance to the principle by recognizing that the status of a State as developed or developing is not static. It depends on an assessment of the current circumstances of the State concerned.
From the above, several conclusions follow. The Court relies on the dynamism originating from the new phrase that the PA added to CBDR-RC: ‘in light of different national circumstances’. The Court interprets the PA text (‘different national circumstances’) as referring to the present situation (‘the current circumstances of the State concerned’). The assessment of this situation is likely to be instrumental in determining the status of a State as ‘developed’ or ‘developing’. The Court makes it explicit that, through the above-mentioned phrasing, the PA ‘recognis[es]’ that this status ‘is not static’. It is plausible to assume that by ‘static’ the Court is referring to the categorisation of States enshrined in UNFCCC Annexes.
On at least two further points, the Court develops views which further feed its position on dynamic categorisation. First, when considering the applicable law the Court reads CBDR-RC as ‘reflect[ing] the need to distribute equitably the burdens of the obligations in respect of climate change, taking into account, inter alia, States’ historical and current contributions to cumulative GHG emissions, and their different current capabilities and national circumstances, including their economic and social development’ (para 148, emphasis added). Furthermore, in subsequent para 150, the ICJ differentiates three groups of states:
- ‘the most developed States’ which significantly contributed to the climate change through historic emissions and which have the resources to reduce them;
- the ‘least developed States’ with limited contribution to the climate change and limited resources;
- ‘States that have progressed considerably in their development since the conclusion of the UNFCCC in 1992’which can be further sub-categorised into: (a) States which now produce significant GHG emissions and have the necessary resources for climate mitigation and adaptation; and (b) States with significant resources (and obviously without major GHG footprint).
Second, in the context of the customary duty to prevent significant harm to the environment, the Court explores the legal standard of due diligence. The Court lists ‘national circumstances’ (para 247) and ‘capabilities of a State’ (para 290) as factors which determine whether a State has acted with due diligence and directly links them to CBDR-RC. The Court then goes on to opine as to how the State’s capabilities should be ascertained (para 292):
The difference between the respective capabilities of States, as one of the factors which determines the diligence required, cannot therefore merely result from a distinction between developed and developing countries, but must also depend on their respective national circumstances. The multifactorial and evolutive character of the due diligence standard entails that, as States develop economically and their capacity increases, so too are the requirements of diligence heightened.
The end of the paragraph echoes Professor Rajamani’s opinion cited above. The paragraph thus indicates that the due diligence standard is dependent not on the status of a developed or a developing State but rather on the economic conditions and the capacity of each State. What is somehow unclear is what happens with a distinction between developed and developing countries? Does it stay but is sidelined or does it evolve–presumably automatically–with the increased State’s capacities?
Future issues
In my view, the Court’s pronouncement on the dynamic categorisation of States under PA is an important one. It may be read to allow the departure from the rigidness of UNFCCC Annexes and avoid the hurdles of a political process that their amendments entail, thus serving equity considerations. However, it leaves several questions unanswered. In particular, the ICJ does not specify how its position should be operationalised. In this connection, I give two examples.
First, under Article 9(5) PA, ‘[d]eveloped country Parties shall biennially communicate indicative quantitative and qualitative information related to … projected levels of public financial resources to be provided to developing country Parties’ while ‘[o]ther Parties providing resources are encouraged to communicate biennially such information on a voluntary basis’. Under the static categorisation of States, this obligation should apply only to parties in Annex II UNFCCC or, according to a marginal view, to parties in Annex I UNFCCC (see, e.g., Argentina’s statement above). At the same time, under the dynamic categorisation of States, certain States in Annex II (or Annex I) may legally decide not to submit respective communications while certain other States not in Annex I may be required to submit respective communications when they, e.g., regularly act as providers of financial assistance for climate action to other States. It should be reminded that Article 9(5) PA serves an important function of increasing the much-needed predictability of financial flows. Unlike in the case of duties of result which may take more time and effort to establish non-compliance, the non-compliance with obligations of conduct, to which the duty under Article 9(5) PA belongs, can be more readily established.
Second, the Green Climate Fund (GCF) provides funding to ‘developing country Parties to the Convention’. While created as the financial mechanism for UNFCCC, it also serves the same role for PA (by virtue of Article 9(8) PA). Currently, GCF serves non-Annex I parties only. Does the Court’s position mean that a State which downgrades from Annex I may now receive GCF funding? Who and how should ascertain this downgrading? This particular case indicates practical challenges of having two approaches to categorisation of States (i.e. one static under UNFCCC and another one dynamic under PA), thus signalling that the same categorisation may be more appropriate for the two treaties.
Conclusion
While the Court made an important recognition of the dynamic nature of categories of States for purposes of the differentiation of their duties under PA, it left a lot of open questions which will need to be resolved by the political (rather than judicial) bodies in charge of implementing UNFCCC and PA. It remains to be seen how such bodies will act in the above-described and similar situations, whether they will recognise new obligations and entitlements of certain States and which criteria and procedures they may put in place to give way to the Court’s pronouncements. Overall, this means that the political debates are not over, and it is possible States may turn back to the ICJ to resolve the matter.
Ielyzaveta Badanova BA & MA (Kyiv National Taras Shevchenko University), LLM (Cantab) and LLM (EUI) is a Senior Lecturer at the National University Kyiv Mohyla Academy, and a PhD Researcher at the European University Institute. She is inspired by complex political, legal, socio-economic issues surrounding the green transition and is an expert in international and European energy and climate law.