The North –South divide in International Environmental Law after the Paris Agreement
Geldenhuys, Benjamin Basson
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Global climate change is a serious, severe, and potentially irreversible problem. If no actions are taken to curb greenhouse gas emissions, global temperatures and sea levels will rise, wreaking havoc on earth, particularly in developing countries. The Stockholm Declaration of 1972 facilitated the first international consensus concerning the application of CBDR to international environmental problems. This was in reaction to the developing countries refusal to adhere to the same standards as the developed countries as they perceived this as a burden to their economic growth, which is unjust due to the developed countries historical culpability. This thesis seeks to establish what the implications are of the dynamic new form of differentiation in terms of the Paris Agreement for the North-South divide in International Environmental Law? The Southern countries have demanded that the North assume responsibility for its immense contribution to major environmental problems (such as climate change), but the North has only grudgingly accepted the principle of common, but differentiated, responsibility on the basis of its superior technical and financial resources while disavowing responsibility on the basis of its historic contributions to these crises. In 1974, through a series of General Assembly resolutions, developing countries sought to overhaul the international legal and economic system and challenge the basic traditions of international law based on the principles of the legal equality and reciprocity to adopt a Declaration on the Establishment of a New International Economic Order (NIEO) and two of the basic tools of the NIEO strategy were the principle of preferential treatment to the benefit of developing countries, and the principle of permanent sovereignty One of the fundamental premises of the United Nations Framework Convention on Climate Change (UNFCCC) of 1992 and of its Kyoto Protocol of 1997, is that leadership from developed countries in combination with differential treatment in favor of developing countries is the equitable basis on which the international response to climate change was structured. The principle of common but differentiated responsibilities and respective capabilities, the CBDRRC principle finds expression in the Framework Convention on Climate Change (FCCC), and is the basis of the burden sharing arrangements crafted under the FCCC and its Kyoto Protocol. Scholars argued that the Kyoto Protocol represents the most extreme example of differential treatment between North-South countries and which ultimately resulted in the withdrawal of the United States from the Kyoto Protocol. The Paris Agreement is anchored in equity and also the first to decisively break with the North-South dichotomy by providing for the principle of “common but differentiated responsibilities and respective capabilities, in light of different national circumstances” (CBDRRC-NC). The Paris Agreement is 'nationally determined contributions' (NDCs) that each country intends to achieve. The Paris Agreement operationalises this principle through differentiation tailored to the demands of each issue area in terms of mitigation, adaptation, finance, capacity building, technology, and transparency. The nature and extent of differentiation in the Paris Agreement, however, is distinct from that in the 1992 Framework Convention on Climate Change (FCCC) and its 1997 Kyoto Protocol. There is in the Paris Agreement a move away from the rigid binary differential obligations to a more dynamic subtle form of differentiation.