Abstract

The climate regime, comprising the Framework Convention on Climate Change of 1992 and the Kyoto Protocol of 1997, contains elements of prescription for and leadership of developed countries and differentiation in favor of developing countries. The nature and extent of differentiation in favor of developing countries in the climate regime, however, has remained contentious through the years. While there is a shared understanding among states that they have common but differentiated responsibilities in addressing climate change, there is little agreement on the formulae for differentiating between states in doing so. This Article argues that the outcomes of international climate negotiations in recent years, in particular the Copenhagen Accord of 2009 and the Cancun Agreements of 2010, offer a distinctive vision of differential treatment. Through these instruments, the international community appears to be moving from differentiation in favor of developing countries towards differentiation or flexibility for all countries, as well as towards increasing parallelism between developed and developing countries. The Durban Platform of 2011, which launches a new process to negotiate a post-2020 agreement, confirms this trend, setting the scene for the erosion of differential treatment in the future/post-2020 climate regime. This Article explores the nature of differentiation, as it is evolving, in the emerging climate regime, in particular as it relates to mitigation obligations, and the impact this is likely to have on the design, ambition, reach and rigor of the emerging climate regime.