The Specification of Rules of Differentiation in the NDCs to the Paris Agreement

Hello and thank you for being with me today. I will now have the pleasure to present my paper in specification of rules of differentiation in the NDCs to the Paris Agreement. I wanted to find out who had to do how much on the Paris Agreement and as the Paris Agreement itself is not so clear about the details I thought in the NDC specifying the individual commitments that I might find more specific criteria for differentiation there too and that I will be able to have a better answer to the question how the different contracting parties complied with the Paris Agreement. The Paris Agreement defines terms and criteria for personalization of differentiation. The principle of common but differentiated responsibilities and respective capabilities is a very general framework whereas the other terms can be more specific. However the way they are used in the Paris Agreement they only have the function of contributing to the discourse on differentiation rather than predefining specific criteria. The criteria for operationalization such as capabilities, vulnerability, responsibility, equality or open criteria such as circumstances or priorities are not very detailed. There are categories and no parameters. The respective weight is not defined in detail and there are no thresholds defined. That means that how to fill these criteria is defined by the contracting parties. Hence the Paris Agreement cannot answer the question who complied to what extent, at least not at the moment. How is it with the NDCs? One of the rules of the Paris Agreement specifying criteria for the NDCs is Article 4. However the requirements to be clear, transparent and understandable are not very specific. Two subsequent decisions to the Paris Agreement specify the criteria for NDCs. First the Decision 1 of CP21 which is directly related to the Paris Agreement and then the Decisions of the Paris Rulebook that started in Katowice in 2018 and continues to be negotiated. Both decisions only make suggestions what the contracting parties might include into the NDCs. So none of these criteria is really binding that leads to the situation where the NDCs are rather unstructured. The empirical analysis of the NDCs is based on Article 31 Paragraph 3 Litera B of the Vienna Convention on the Law of Treaties. It says that any subsequent practice and application of the treaty which establishes the agreement of parties regarding its interpretation shall be taken into account. The agreement of the parties regarding the interpretation of the treaty depends on uniformity, frequency and duration. Frequency and duration cannot be proven with the first NDCs. So everything depends on the uniformity requirement. Criterion must be sufficiently determined and supported by many states. The sample I analysed consists of 51 out of 186 NDCs. These represent different groups. You can see the criteria according to which the sample is represented on the right. Only those criteria of differentiation that are at least supported by 50% will be analysed further. The sample is an intermediate step to get closer to the criteria that are dominant. All the terms of differentiation could be found in the NDCs. Fairness is the term the most represented, followed by equity, the principle of CBDR and justice. This table shows how the NDCs specify the terms of differentiation. Of broad criteria, responsibility and capability are dominant criteria. Of the more specific criteria, emissions per capita are a dominant trend. However, they don't have the 50% threshold, so they are not representative enough to be proven. Fairness is considered to depend mainly on criteria of responsibility, not so much on criteria of capability. Of the criteria of rationalising differentiation without referring to any specific term of differentiation, the broad categories are broadly recognised. Responsibility, capability and vulnerability of the detailed criteria, expectations are recognised, such as capacity building, financial transfers, technology transfers, but also categories of development, such as developed and developing countries, or the criterion of sustainable development. Apart from that, the NDCs focus on their own vulnerability without specifying in detail. Most recognised quantifiable parameters are the emissions intensity, the GDP and emissions per capita, but they are still below the threshold of 50%. The findings of the terms of differentiation and also of the criteria for operationalisation are very general. I want to make a suggestion how to structure them better. This is a proposal for the standardised form. I filled it out for the fictive example of a developing country. The criteria that might be specified here are the details needed to define the target, but also the general expectations towards those states, or criteria of differentiation that might be quantified or not. These might also include the specification of terms of differentiation. It might be a good idea to include options for open criteria, but also for refusals of criteria. This would make the whole discussion about criteria of differentiation more transparent. The NDCs focus on the broad categories we already know from the Paris Agreement, capability, responsibility and vulnerability, but they also do specify categories that are more detailed, such as categories of development, sustainable development, expectations of capacity building, financial transfers and technology transfers. This means that the criteria found dominant basically confirm what we already knew from the Paris Agreement. They don't lead to additional criteria. Quantifiable parameters are only partly recognised so far, such as emission intensity, GDP and emissions per capita. But the emissions per capita are a criterion that is linked to fairness quite often, even though it is not beyond the 50 percent. The problem is now that the weight of all these criteria is not specified so far, and that means that we cannot answer the initial question. We cannot say that selective state did not comply with its concrete targets it had under the Paris Agreement, not only because the NDCs are not binding, but also because the rules of differentiation are not sufficiently specified. The standardised form I suggest above means that this discourse on the rules of differentiation can be more profound in the future maybe, and that we can structure the criteria even if we refuse this or that criterion. This might help to make the discourse more transparent in the future. Thank you for listening. I hope you enjoyed the presentation and I'm looking forward to your questions or comments.