Climate change and its control has been an issue of major concern for the global
economy for a long time. At the 17 th conference of parties in 2011, the Durban Platform was
adopted with the aim of seeking enhanced action on climate change. The UNFCCC parties
adopted the Durban Platform seeking the development of another legal instrument that would
be developed in the future at the 21 st conference of parties in Paris France. The Paris
Agreement was developed with a deliberately open formulation that would ensure that it has
an effective legal form. The legal form to be taken by the legislation was not determined in
the agreement in COP17 and the parties had to come together in determining the best way to
enforce it.
The key aspects of the Paris Agreement were contribution from each party being
nationally determined and international rules and regulations presenting binding procedural
commitments. Some of the key issues addressed in the agreement include the development of
flexibility that allows the different countries to match their contributions with the
circumstances enabling broad participation for the different countries. A major element of the
agreement is to reflect the principle of common but differentiated responsibility capabilities.
This is achieved through its nature as a binding instrument that contains some non-binding
elements. The NDCs preparation and implementation as well as the reporting elements are
binding instruments (UNFCCC, 2017) .
The Paris Agreement -COP 21 was adopted as a treaty in December 2015. It was a
global action to limit the rise in atmospheric temperature to below 2 degrees Celsius in order
combat the effects of climate change. The agreement entered into force in November 2016
consisting of the accords on the set target of 2 degrees Celsius with further reduction to 1.5
degrees Celsius above the pre-industrial levels.

A key issue with the agreement is its aim to enhance the capacity of nations to deal
with the negative effects of climate change in order to accomplish the ambitious goals set in
the agreement, the policy makers focused on new technology framework, capacity building
and financial flows. It will provide support to developing nations and those most vulnerable
to climate change through alignment with their objectives. The objectives set in the
agreement will be achieved through a hybrid approach consisting of both bottom-up (INDCs)
and top-down approaches.
The Legal Form of the Agreement – Treaty in International Law
The agreement is fashioned as a treaty in international law where the different parties
are expected to ratify the recommendations made and pledge their commitment to the set
goals. According to the Vienna Convention, Treaty is written among nation-states with the
intent of creating a universal law. There had been disagreements on the legal form of
previous negotiations with developed nations like the United States not agreeing on binding
legal instruments unless it proportionately applied to all parties. The developing state, on the
other hand, prefer the development of legal agreements that obligate fixed emission reduction
for developed countries. The countries are required to develop nationally determined
contributions that highlight their efforts in reducing carbon emissions and they engage in
accurate reporting to highlight their activities. The agreement also sets recommendations on
the strategies that countries should apply in order to improve the outcomes in the future. The
countries that have ratified the agreement are required to take stock of their efforts and the
outcomes derived by the different countries. This would be essential in enabling them to
inform the formulation of the NDCs
In November 2016, the Paris Agreement entered into force. On 4 th November 2016,
when it entered into force, at least 55 nations that accounted for about 55% of the global
carbon emissions had deposited their instruments of ratification. 145 parties have ratified the

agreement and started working on the necessary steps to enhance the development of the
instruments to be applied in ensuring that the climate change objectives are met. The
framework provides the considerations necessary in developing guidance on the features of
the agreement as well as the information to be provided by the different parties in facilitating
transparency, clarity, and understanding of the consideration for their adoption.
Emission Targets – Art. 7
The focus of the Paris Agreement was on reducing the adverse effects of climate
change and enhancing the global response to climate change. The agreement is not solely
focused on climate change since it aims to produce sustainable development and efforts for
poverty eradication. Article 7 provides the guidelines for operationalization of the goals to
reduce the effects of climate change by designing the adaptive efforts that the different parties
are required to make. The article 7, which spells out the strategies to be adopted in
operationalization and adaptation of the agreement, highlights the need for collective action
(Bodansky, 2016) . The adaptation of the agreements and the set provisions for
implementation of the Paris Agreement include the development of the collective approaches
to be applied in the application of the strategies across countries.
The specific adaptation needs vary across countries, but the agreement proposes
collective adaptation. Decision paragraphs 41-46 provide the necessary specifity where the
agreement is less detailed. Unlike the binding agreement, the language of the decision carries
less legal force. The language included in the decision influences the manner in which the
agreement is interpreted across countries (Bodansky, 2016) . The article provides the
necessary guidance for carrying out the objectives of the agreement. However, it is essential
to note that the agreement is not binding and the language used proposes the need for further
negotiations in the future.

One of them main issues in the agreement was the development of domestic global
adaptation goals. For the different parties, varied views were held about the mitigation
measures with the developing nations seeking parity between mitigation and adaptation
through the development of a nexus. Although it is location specific, the adaptation of the
agreement highlights the global goals of enhancing the adaptive capacity. Sustainable
development and the global adaptation challenge has to be addressed from sub national,
regional, local and international perspectives (Smith, 2016) .
Common but Differentiated Responsibility and Respective Capability (CBDR-RC)
The CBDR–RC is among the critical principles in the UNFCC. It accounts for the
varied capacities and roles of individual nations in addressing the issue of climate change
(Bortscheller, 2010). In the UNFCC 1992 Treaty, all nations that participated recommended
this principle. According to the principle, climate change needs wide cooperation from all
nations and that there should be effective and international response (A CISDL Report Legal
Brief, 2002). All nations are supposed to act to their best on matters concerning climate
change in accordance to their capacities and socioeconomic conditions.
Common but differentiated owes its origin to the fact that mankind has a common heritage
and it has been outlined among the principles of Equity in international law. The principle
recognizes the fact that there are historical variations which are behind every state both
developed and developing, and their contributions to climate change are also different (A
CISDL Report Legal Brief, 2002). The economic, social, and technical ability of both
developed and developing nations dictates the way these nations will solve the climate
change issue. Regardless of the differences, there are common but different ways that these
nations can handle the issue.

In examining the principle of common but differentiated responsibility, there are two
major elements of concern. The responsibility of state nations in protecting the environment
at global, national and state levels. The other concern is that there is a need of accounting for
different conditions and every state’s contribution to the origin of a problem and the
capability to prevent or reduce a threat to the climate (A CISDL Report Legal Brief, 2002).
In Article 2.2, much has been elaborated on the responsibilities and obligations of the
developed and developing nations. The focus will be on the obligations of developed nations.
The CBDR RC in the Paris Agreement tried to define the difference between developing and
developed countries and their obligations in climate change. The shortcoming of the
agreement is that it does not refer to Annex I, or II and the non-Annex I Party nations, but it
focusses on developed and developing nations (Mbevi & Pauw, 2016). The agreement also
has flaws on the determination factors of developed and a developing nation. It also does not
offer much judgement on the equitability or the promotion of a nation from developing to
developed. As a fact, there is no meaningful differentiation of the developing and developed
Developed nations are supposed to act as leaders in the fight against climate change.
In Article 4 of the UNFCC Convention Text and Kyoto Protocol, developed nations should
consider their actions in terms of funding, insurance, capacity building, and technology
transfer to meet the needs of the developing nations. Developed nations have made much
emissions, therefore, they have exhausted much of their global emissions budget. According
to the CDR, developing and developed nations have had tussles about who would start to
reduce GHG emissions and offer funding (Bortscheller, 2010). They have the finances and
technology that they can spread over to the poor countries to enable sustainability and clean
energy. Most developed countries should take the greatest responsibility in leading other
nations in reducing climate change. In Art.9.3, developed nations shall offer climate finance

and lead other nations in mobilizing finance resources. In Art.10, they should transfer
technology to the developing nations and enable them to move towards sustainable
development that targets lesser emissions to the environment. In Art. 9.2, all Parties bound by
the Paris agreement must offer continued and voluntary support, which implies that all
nations must cooperate in reducing climate change.
Most developing nations raised issues on equity. In examining the CBDR–RC
principle tries to embrace some form of equity both for the developed and developing
nations. Respective capabilities are a compound term that tries to aggregate the capabilities
and responsibilities on an equal measure. Developed nations are against the use of history as
the basis of judging emissions because they do not want the application of the formula that
the polluter must compensate others (Mbevi & Pauw, 2016). Developing nations also have an
issue with the respective capabilities issue. Some developing nations are almost developed
while others are poor and devoid of any useful capacities. China is labelled as a developing
nation and it is almost developed while it lands in the same class as Equatorial Guinea. China
as a developing nation has a better capability of playing its role as a developing nation while
Equatorial Guinea has no power at all. The actions that should be taken by the respective
nations lies in their capabilities, but others can do nothing much. In Art. 9.3, developed
nations should lead in capacity building, and mobilizing finance, and all Parties are
encouraged to do that voluntarily. The aspect of equity is lost in this article given that there is
no timing. Developed nations are supposed to fund, but a suitable amount has not been
established. Sharing of climate funds is also an issue in terms of giving and receiving. The
word differentiation salvages the aspect of failed equity that is a result of respective
capabilities. Different developing nations should adopt different measures while considering
their diverse circumstances and capacities (Mbevi & Pauw, 2016). Again, diverse
circumstances and capacities may be lacking in the context of some developing nations

meaning that it would be unfair to give China and Equatorial Guinea the same amount of
climate funds. Equity could also be called a vague thing in the Climate Change protocols and
The role of United States and China’s agreement in implementing the Paris
Agreement cannot be ignored. Both are the greatest GHG emitters. They have a big
geographical area and have mutual business relations. The United States and China have had
tensions on the ratification of the Paris Agreement. China considers itself a developing nation
while the United States views China as a developed nation. In 2016, after several negotiations
by Chinese and American officials, both nations agreed to ratify the Paris Agreement. Both
sides agreed to focus and implement the three presidential joint statements on climate change
as states in the Paris Agreement. Both nations agreed to reduce HFCs according to the
Montreal Protocol (The White House, 2016). They would also meet the demands of Art.2 and
5. They also agreed to work on clean energy, support policies that will transform the air
conditioning market. They would also support other nations according to Art.2 and also focus
on the implementation of the changes as stated in Art.5. The other part targets the reduction
of carbon emissions from the aviation industry, the creation of carbon cities, and the creation
of low carbon cities. The United States will give and extend investment tax credits for
renewable energy such as solar and wind. Coal mining would be banned and all programs on
leasing of land for coal mining will be stopped. The United States would also focus on
reducing domestic use of HFCs, reduce the number of landfills, and increase the efficiency of
heavy duty vehicles. China is also supposed to lower its carbon dioxide per unit of GDP and
energy consumption by 3 percent in the next five years (The White House, 2016). It is also
dedicated to working on standard modern transport, energy efficient production systems, set
up its national emission trading system by the end of this year. To strengthen the low carbon
policies, the United States must lead other parties in providing USD 100B to fund the

developing nations and others to sustainable development and clean energy (The White
House, 2016). The world must move as a block in implementing low carbon policies,
emission policies, reducing pollution both at local and international levels among other
The ratification of the agreement is supposed to come into force when 55 countries
that emit 55 nations ratify the agreement. Changes in the United States administration and the
wrangles with China may imply changes in the 2016 deal between President Obama and
China’s Xi Jinping (The White House, 2016). The outcome would be the lack of
implementation of the agreement given that China and the United States are the largest
emitters of GHGs.
Nationally Determined Contributions (NDCs) -procedures regarding accountability
and transparency in recording for subsequent NDCs. Art.4.13
The Nationally Determined Contributions (NDCs) is a new agreement outlined by
countries on what post 20-20 climate actions intended to achieve. This was as a result of the
signing of the international climate agreement that was signed in 2015 in Paris Conference of
Parties (COP21) at the United Nations Framework Convention on Climate Change (UNFCC)
Conference (World Resource Institute, 2015).
The climate actions outlined under these Nationally Determined Contributions
(NDCs) largely determine whether the world achieves the goals of Paris Agreement that
include controlling the increase in global average temperature and limit the growth in
temperature. Also, the parties should strive to achieve a zero – carbon emission in the second
half of the century. Although the Nationally Determined Contributions (NDCs) s provide the
outline of actions the countries intend to take in addressing the climate change both regarding
adaptation and mitigation, it means through which the government communicates with the
international bodies on the steps they are willing to undertake to address climate change in

their countries (world bank, 2016). Therefore the Nationally Determined Contributions
(NDCs) reflect the country's ambition to the reduction of emissions by taking into account its
national circumstances and capabilities although the Nationally Determined Contributions
(NDCs) becomes binding once the country ratifies the Paris Agreement.
Article 4.13 outlines accounting practices and requires parties to account for their
Nationally Determined Contributions (NDCs) by promoting environmental integrity,
accuracy, completeness, transparency, consistency and eliminate double counting of
mitigation. Some of the double counting mitigation includes double issuance of more than
one unit for the same emissions reductions, double selling of same unit used more than once
towards emission obligations, double claiming of same mitigation by two jurisdictions
(Hood, 2016). Article 13 provides the transparency framework that provides a clear
understanding of climate change actions, how to track the progress towards implementing
and achieving the Nationally Determined Contributions (NDCs), and how to contribute to the
five-yearly global stocktaking.
Adaptation- ‘Loss and Damage’
Art.8. recognizes the significance of losses and damages that emanate from climate
change. Parties should work towards reducing or averting the loss and damage that is
associated with climate change. The Paris Agreement extrapolates the Warsaw International
Mechanism for Loss and Damage. It uses the same principles on the implementation of long-
term climate framework. In Art. 8, developed nations such as the United States are supposed
to have emergency and disaster preparedness and effective warning systems. The
compensation of nations that have been damaged by climate changes had been a contentious
issue before the agreement because there was no base for evaluating liability. Damage was
hard to be quantified and compensated given the lack of consensus in previous protocols.
Some of the systems that can be used to minimize the losses and damages in the Paris

Agreement include, early warning systems, emergency preparedness, slowing the onset of
events, avoiding events that may cause irreversible losses, and intensive risk assessment and
management. Insurance solutions and systems should be implemented to offer risk insurance
services, and climate risk pooling.
One of the issues that remain in loss and damage compensation is the action or
inaction of developing nations. A good look is Haiti, which is vulnerable to all the adversities
of climate change. The impacts of climate change may fail to be mitigated in developing
nations given their capacity meaning that compensation will be automatic. In regards to the
climate funding, the United States is supposed to lead other nations in mobilizing funds (IMF
Staff, 2016). The US has more responsibilities than other nations such that if it fails to offer
funding and support for climate change as seen in the Trump administration, the Paris
Agreement is bound to fail.
The article 4 is on mitigation, and it provides a guideline on the communication of
Nationally Determined Contributions (NDCs) and accounting. On the communication of the
Nationally Determined Contributions (NDCs), the parties to the agreement should provide
necessary information that is transparent, clear and understanding. These double counting of
mitigation such as double issuance can be avoided by establishing strong governance
mechanisms for environmental integrity. Double selling can be countered by putting in place
robust tracking arrangements. Also, the double claiming can be countered by the accounting
rules that prevent double claiming.
Article 13 clearly stipulates that each party should regularly provide the emission
inventory, and provide information necessary to track the implementation of Nationally
Determined Contributions (NDCs). Also, the technical expert review should also clearly
show the capacity building needs and other areas that need improvement and also

demonstrate the consistency with methodologies. Facilitative multilateral consultations
should be geared towards implementing and achieving of Nationally Determined
Contributions (NDCs) (Hood, 2016).
In order to progress towards a low carbon economy, the three pillars of carbon
transparency initiative that include the country models, the MRV Trust Fund, The Climate
Action Assessment have been established. The Country models are indicator led
methodologies that highlight the progress towards building a low-carbon economy through
tracking and analyzing the driver metrics underpinning the decarbonisation. These
methodologies include the trends and forecasts, leading indicators, and transparency. The
MRV Trust Fund provides a consistent framework to track emissions for parties to the Paris
Accord and also it provides support for the governments in implementation, tracking and
improving policies through consistent methodology. Through this fund, the governments in
developing and emerging economies are empowered in improving the country capacity.
However, it is the duty of the countries to identify the policies that are most effective in
reducing the emissions and report such policies to the international community. The Climate
Action Assessment seeks to promote climate transparency by promoting accountability,
transparency, ambition, and comparability. This assessment seeks to encourage the
development of strong policies that scale up the climate ambition, improve the capacity of
civil society in monitoring and to report on the progress of climate management through
independent scientific analysis. Also, they promote transparent systems that rank countries
regarding decarbonisation progress.
Governments can, therefore, track their progress towards achieving their NDCs by
using the five-step mitigation goal standard that was developed by forty countries. The first
step of the standard is the design part that seeks to design the goal and choose the accounting
methods. For example, in greenhouse gas emission reduction, the goal is to reduce the

greenhouse gas. The second step is calculation step that calculates the allowable emission in
the target year. The third step is the assess part that seeks to assess the progress and goal
achievement. The fourth step is the verification of the results, and the fifth step is reporting
the results.
Several measurements have been put in place in measuring the country's progress
towards achieving the NDCs. For instance measuring Greenhouse Gas (GHG) emission,
countries, cities, and companies have set of measurements (DEFRA, 2009) . Countries can use
the Greenhouse Gas (GHG) emission inventory measurement that provides the countries with
the IPCC Guidelines for national greenhouse gas inventories, and GHG Protocol corporate
standard for the companies to do emission inventory. The cities can also use the
WRI/C40/ICLEI Global Protocol for Community-Scale Greenhouse Gas Emission
Inventories to do emission inventory (World Resources Institute and World Business Council
for Sustainable Development, 2004) . For Greenhouse Gas (GHG) reductions, the countries,
corporate and cities can use the Greenhouse Gas (GHG) Protocol policy and action standard
measurement for policies and actions, and the Greenhouse Gas (GHG) protocol for project
accounting measurements for projects (DEFRA, 2009) . Finally, on goal progress, the
countries and cities can use the Greenhouse Gas (GHG) Protocol mitigation goal standard
measurement to measure the goal progress. The companies and organizations can use the
Greenhouse Gas (GHG) Protocol Corporate standard measurement for measuring goal
progress (World Resources Institute and World Business Council for Sustainable
Development, 2004) .
The first global stocktaking concept introduced by PA will take place in 2023 and
consecutively after every five years. The objective of the stocktaking is to update the NDCs
on progress made. The first updating process will take place in 2020 and progressively after

every two years. Members should submit their progress report to relevant Secretariat 9-12
months before CMA sessions.



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Differentiated Responsibilities Hobbles The Global Fight Against Climate Change.”
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Running head: LAW 16
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