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Common but Differentiated Responsibilities

The principle of common but differentiated responsibilities is included explicitly in the UNFCCC and is implicit in other multilateral environmental agreements, including the Convention on Biological Diversity and the Montreal Protocol on Substances that Deplete the Ozone Layer. While this principle is not exclusive to international environmental law, it has become the most fertile ground for creating non-uniform international treaty obligations.[1] In international environmental law, the principle of common but differentiated responsibilities means that not every country that faces the common problem shares equally in the common responsibility to fix it.[2] Principle 12 of the Stockholm Declaration calls for international technical and financial assistance to help developing countries with the cost of environmental protection.[3] Rio Declaration Principle 6 provides that “[t]he special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority.” Principle 7 of the Rio Declaration expresses this principle in the following terms:

States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

UNFCCC Article 3(1) expresses this principle as follows:

The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

UNFCCC Article 4(1) requires all parties to take into account “their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances” in implementing the reporting and cooperation commitments set out in that provision. The commitments in Article 4(2), to limit GHG emissions and to protect and enhance sinks and reservoirs, only apply to the developed country parties and other parties included in Annex I. The commitments regarding financing and technology transfer in Article 4, paragraphs

(3), (4), and (5) only apply to the developed country parties and other developed parties included in Annex II. Article 4(7) conditions the implementation of developing country parties’ commitments under the Convention on the effective implementation by developed country parties of their commitments related to financial resources and transfer of technology. Article 4(9) requires the parties to take full account of the specific needs and special situations of the least developed countries in their actions with regard to funding and transfer of technology. Article 4(10) requires the parties to take into consideration in the implementation of the commitments of the Convention the situation of parties, particularly developing country parties, with economies that are vulnerable to the adverse effects of the implementation of measures to respond to climate change.

In public international law, there is no agreement on what CDR means or when it applies, which makes it difficult to consider as a rule of customary international law that applies to all nations regardless of whether they have agreed to a specific application in a treaty.[4] Indeed, the responsibility of States to ensure that activities within their jurisdiction do not cause damage to the environment in other States or in areas beyond the limits of their jurisdiction does not permit a lack of mitigation resources to be used as a defense.[5] Moreover, in public international law, differential obligations are the exception.[5]

Are there normative arguments that support differential obligations with respect to climate change? Stone argues that Rio Declaration Principles 6 and 7 advance three arguments in favor ofdifferentiation: (1) needs/vulnerability; (2) contribution to the problem; and (3) financial and technological capacity to resolve the problem. However, he notes that the most needy nations are not necessarily less responsible for environmental damage, nor are those most responsible necessarily those with the greatest financial and technological capacity. He argues that, in the case of climate change, need must be understood as need that is due to a combination of vulnerability and lack of resources to mitigate risks. Assigning responsibility according to the contribution to the environmental damage is justifiable on the same basis as the polluter-pays principle (PPP), but is more problematic when the payment is for past harms, not caused by today’s citizens, such as, for example, an immigrant to a developing country who played no part in the developing country’s past pollution. Assigning responsibility based on wealth and technology can be viewed as a form of distributive justice, but the pursuit of wealth redistribution should not make poverty a defense against antipollution laws.[7]

The UNFCCC provisions on common but differentiated responsibility seem rather outdated now, only twenty years after the parties agreed to them. So do the Kyoto Protocol commitments. The ensuing growth of the technological capacities, economies, and emissions of countries like China, the reduction in the debts of major developing countries like Mexico, and the financial crises in Japan, the United States, and the European Union have combined to dramatically alter the financial and technological landscape. Robert Stavins points out that the 1997 Kyoto Protocol assigned emission targets only to 40 industrialized countries, leaving more than 140 countries without any such commitments. Little more than a decade later, 50 of those developing countries had higher per capita income than the poorest of the countries with emission-reduction responsibilities under Kyoto.[8] Nevertheless, India and China recently alleged a violation of the CDR principle of the UNFCCC in ordering their airlines not to comply with the EU Aviation Directive.[9] Some consider that disputes over the scope of CDR are a primary cause of the failure to advance sufficiently in UNFCCC negotiations.[10]

World population 1750-2100 AD

Figure 2.1 World population 1750-2100 AD

As Figure 2.1 shows, the overwhelming majority of the world’s population will still be in developing countries by the end of this century, when serious impacts from climate change are expected to be felt. What is notable about Figure 2.1 is that the countries which were in the developed country league in 1800, were the same in 2000 (with one clear exception: Japan). However, this will change substantially in the twenty-first century. Among the countries with more than 100 million population, Brazil, China, India, Indonesia, Mexico, and Russia will join the league of developed countries (along with a group of smaller ones). Some major developing countries have begun to produce both clean energy technologies (China for example) and new plant varieties (Brazil for example). This trend is likely to continue as other countries join the foray.

Using CDR to divide the world into developed and developing countries, and using that categorization as a basis for addressing climate change, whether through adaptation or mitigation, is too simplistic and is not working. Indeed, it has become an obstacle to reaching international agreements to address climate change. Moreover, the financial and technological endowments of countries are not frozen in time. It makes more sense to assign responsibility on a scale, based on objective criteria that are in accordance with the governing principles of international environmental law and determine responsibility for the cost of mitigation and adaptation, respectively. These criteria could be used to create an index ofcountries that evolves as conditions change, what we shall call the “Climate Sensitivity Index.” We develop this index in Chapter 6.

A comparable principle exists in WTO law (special and differential treatment for developing countries). The principle of common but differentiated responsibilities is unlikely to influence the interpretation of WTO law, since it would be overridden by the express inclusion of special and differential treatment provisions. Some argue that special and differential treatment of developing countries is inappropriate in the trade context because it may hamper the economic development that could flow from adopting stricter trade disciplines.[11] However, this argument is not persuasive in the context of other aspects of WTO law, such as intellectual property.[12]

Aside from specific provisions in WTO agreements that provide special and differential treatment, Morosini argues that CDR is implicit in other provisions of the WTO agreements. In US—Shrimp, the Appellate Body found that GATT Article XX requires flexible application of measures that takes into account the conditions prevailing in different countries. In Brazil—Retreaded Tyres, the Appellate Body took Brazil’s level of technological and economic development into consideration in rejecting an alternative approach to environmental protection that the European Union proposed in place of Brazil’s trade restriction. Morosini concludes that “the judicial bodies of the WTO will resort to CDR to resolve conflicts between trade, environment, and development.”[13] However, this is unlikely to occur, for two reasons. First, CDR cannot override the text of the WTO agreements any more than special and differential treatment or the precautionary principle can. Second, most of the special and differential treatment provisions in the WTO Agreements are not binding in a meaningful way.[14] [15] Thus, both the text and the context of the WTO Agreements indicate that CDR would have a limited role, if any, in the interpretation and application of their provisions.

Nevertheless, Morosini’s analysis is useful, because it shows that WTO law probably is not inconsistent with the principle of CDR. Morosini argues that the principle of CDR is part of, or inherent to, the concept of sustainable development, which is recognized in the preamble of the WTO Agreement. Alternatively, if one disagrees that the principle of CDR is inherent in the concept of sustainable development, the principle of CDR should inform the interpretation of the WTO covered agreements based either on a different passage of the preamble to the WTO Agreement (“seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development”) or on the GATT Article XX chapeau (“between countries where the same conditions prevail”), as interpreted in US—Shrimp.4 It is an interesting argument and could provide support for developing CDR/special and differential treatment criteria along the lines that we propose above. Nevertheless, in WTO disputes, what will be relevant are the specific circumstances of each case and each country and the specific terms of the relevant WTO provisions, particularly when considered in light of EC—Tariff Preferences, in which the Appellate Body found that countries in similar financial and economic circumstances should be treated in a similar fashion under the Enabling Clause.[16]

  • [1] Christopher D. Stone, “Common but Differentiated Responsibilities in International Law”(2004) 98 AJIL 276, 279.
  • [2] Stone, “Common but Differentiated Responsibilities” 276.
  • [3] Declaration of the United Nations Conference on the Human Environment (1972) (accessed August 28,2012).
  • [4] Stone, “Common but Differentiated Responsibilities” 281.
  • [5] Stone, “Common but Differentiated Responsibilities” 282.
  • [6] Stone, “Common but Differentiated Responsibilities” 282.
  • [7] Stone, “Common but Differentiated Responsibilities” 290—2; Rio Declaration on Environmentand Development (1992) (accessed August 28, 2012).
  • [8] Stavins, “Why Cancun Trumped Copenhagen.”
  • [9] Joshua Meltzer, “Regulating CO2 Emissions from Aviation in the EU” (2012) 16(27) ASILInsights (accessed March 15, 2013).
  • [10] Stone, “Common but Differentiated Responsibilities” 280.
  • [11] Michael Hart and Bill Dymond, “Special and Differential Treatment and the Doha Development Round” (2003) 37 Journal of World Trade 395.
  • [12] Bradly J. Condon and Tapen Sinha, “Global Diseases, Global Patents and Differential Treatment in WTO Law: Criteria for Suspending Patent Obligations in Developing Countries” (2005) 26Northwestern Journal of International Law and Business 1.
  • [13] Morosini, “Trade and Climate Change” 718.
  • [14] See e.g. Antidumping Agreement, Art. 15; Panel Report, United States—Anti-Dumping andCountervailing Measures on Steel Plate from India (US—Steel Plate), WT/DS206/R, adopted July 29,2002, para. 7.110.
  • [15] Morosini, “Trade and Climate Change” 721—5.
  • [16] Appellate Body Report, European Communities—Conditions for the Granting of Tariff Preferencesto Developing Countries (EC—Tariff Preferences), WT/DS246/AB/R, adoptedApril 20, 2004; Condonand Sinha, “Global Diseases, Global Patents and Differential Treatment in WTO Law.”
 
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