Legal symmetry and legal differentiation under a future deal on climate

The stalemate in the climate negotiations is related to the legal character of an international agreement to address climate change. There is ongoing tension between the demand of some developed countries that all countries must be bound by the same standard of legal character (‘legal symmetry’) and the insistence that developed countries must be held to a higher standard of legal character (‘legal differentiation’). The legal character of the future climate deal is unravelled into four component parts to demonstrate that—if negotiators are able to reach consensus on the substance of an agreement—viewing each of the components of legal character separately might offer a way of reconciling tensions over symmetry and differentiation. The focus on the first of these components—the legally binding character of the agreement—distracts countries from an essential debate on the specificity and ambition of the commitments that might be contained in such an agreement. Instead, it is suggested that negotiators focus on strengthening and expanding the operation of the UN Framework Convention on Climate Change (UNFCCC) institutions and procedures designed to ensure quality of data, harmonizing standards and policies, coordinating carbon markets, and reviewing Parties' performance.