PhD defence by Sophie Hölscher
This thesis is a socio-legal study of the life of the ambiguous guiding principles of equity, common but differentiated responsibilities and respective capabilities (CBDR-RC), and sustainable development in the UN climate regime’s area of climate finance.
Drawing on a mixed method combining doctrinal analysis with the analysis of interviews and observations from participant observation, it carves out patterns of engagement and disengagement with these
principles that explain how legal ambiguity is perpetuated in the regulation and governance practices of climate finance, specifically at the Green Climate Fund (GCF).
The thesis begins with analyses of the role and ambiguity of equity, CBDR-RC, and sustainable development in the UN climate regime’s treaties, of obligations regarding the provision of climate finance, and of the legal-institutional system for channelling funding through the regime’s Financial Mechanism. Next, it discusses five themes in diplomatic and bureaucratic law-making through which the ambiguity of the principles is carried on in climate finance regulation and governance practices, focussing first on the GCF Secretariat and later moving on to the Fund’s relationship with related actors in the wider UN climate regime. The last substantive chapter shifts attention to the substance of climate finance regulation, demonstrating how even the most concrete regulatory and governance decisions are characterised by the original ambiguity of equity, CBDR-RC, and sustainable development. The conclusion critically reflects on normative disorientation in the face of ambiguous guiding principles.
The thesis finds that the originally constructive ambiguity of the principles has a range of problematic effects on regime development, the emancipatory potential of the UN climate regime, and financial support for meaningful systemic change. It develops novel understandings of how legal mandates, institutional structures, bureaucratic practices, and political dynamics interact in the UN climate regime, and how legal design ultimately affects socio-economic and ecological distributive outcomes.
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