LAW MANTRA THINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

Honorary Concept of Common but Differentiated Responsibility

Introduction

The principle of common.but differentiated.responsibility evolved from the notion of the

common heritage of mankind and is a manifestation of general principles of equity in

international law. The principle recognises historical differences in the contributions of

developed and developing States to global environmental problems, and.dissimilarities in their

financial and technical capacity to tackle these problems. Despite their standard

responsibilities, notable dissimilarities exist between the said responsibilities of developed and

developing countries. The concept of CBDR was embodied in. Principle 7 of the Rio

Declaration at the first Rio Earth Summit in 1992. In view of the numerous offerings to global

environmental degradation, States have common but differentiated responsibilities. The

developed countries acknowledge the responsibility that they bear in the international run to

sustainable development in view of the pressure these societies place on the global

environment and of the technologies and economic resources they command.

The global environmental threats, such as climate change and its consequences, truly embody

the common concern, interest and obligation of all global citizens, Nation-States Governments

and all stakeholders but the respective. Potential, geographical circumstances, historic

responsibilities or contribution to the challenges and historic credulousness of Nation-States,

actually contrast. Thus, the approach or regulatory framework for tackling the challenges

requires the consideration of differentiated responsibilities and capabilities of Nation-States

with a view to accommodating the principle of equity, justice and human rights. This defines

the context in which the. Concept of common but differentiated responsibility and respective

capabilities (CBDR) came into existent in most of the multilateral environmental agreements

(MEAs). For example, one of the most conspicuous aspects of the 1992 United Nations

Conference on Environment and Development (known as The Rio Declaration) was the

international community's endorsement of differentiated responsibilities between developed

and developing States as a means of achieving both global environmental protection and

sustainable development1. Therefore, the concept of CBDR may actually be regarded as a tool

brought about on the principle of equality and justice and may be described as a round peg in

a round hole for sharing roles and responsibilities to balance the uncanny circumstances of

historical, geographical and financial consideration, along the global divides of developed and

the developing countries.

Origin of Common but Differentiated Responsibility (CBDR)

It was the Stockholm Declaration that first accentuated the need to be fair in addressing in-

ternational environmental problems by taking the uncanniness.of developing countries into

account2. It accentuated that their priorities and needs be considered in order to avoid hard-

ship. It also encouraged the provisions of technical and financial assistance to aid them and

expressed the need for international environmental standards to vary in line with the values.

Rio Earth Summit 1992 -The United Nations Conference on Environment and Development

(UNCED) took place in 1992 in Rio de Janeiro, Brazil. Government officials from 178

countries and between 20,000 and 30,000 individuals from governments, NGOs and the media

participated in this event to discuss solutions for global problems such as poverty, war or the

increasing gap between industrialized and developing countries.3There was also the question of

how to relieve the global environmental system through. The introduction to the prototype of

sustainable development. It accentuates that economic and social progress depends critically on

the preservation of the natural resource base with effective measures to prevent environmental

degradation.

More than 100 heads of states and. governments adopted the 1992 Rio Declaration on

Environment and Development with its 27 principles, after long, difficult and often heated

debate.

Ten years later, the Rio+10 summits adopted the Johannesburg Plan of Action that opens with

the following sentence in paragraph 1:

The United Nations Conference on Environment and Development, held in Rio de Janeiro in

1992, provided the fundamental. Principles and the programmed of action for achieving 1MargreetWewerinke Addressing Climate Change through Sustainable Development and the Promotion of Human Rights 2010 pp. 49-50. 2Stockhom Declaration Principles 12 and 23 3Hienrich Boll Foundation World Summit 2002

sustainable development. We strongly reaffirm our commitment to the Rio principles, the full

implementation of Agenda 21 and the Programme for the Further Implementation of Agenda

21

A cornerstone of the global partnership molded in 1992 to meet the ecological crisis identified

even back then, and to integrate the three pillars (environment, social and economic) of

sustainable development is Principle 7 of the Rio Declaration:

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

of sustainable development in view of the pressures their societies place on the global

environment and of the technologies and financial resources they command.4

The application of this principle was similarly negotiated in the parallel negotiations of the UN

Framework Convention on Climate Change. (UNFCCC), the Convention on Biological

Diversity and the Convention to Combat Desertification. CBDR is explicitly contained in

Article 3.1 of the UNFCCC. In all 3 Rio Conventions it is illustrated in the commitments of

developed countries to provide financial resources (including on concessional and preferential

terms), technology transfer and capacity building to developing countries.

However, the Rio principles, and in particular common but differentiated responsibilities

(CBDR) in Principle 7, are systematically. Threatened in the negotiations leading to the

Rio+20 Conference.

4 www.twnside.org

Elaborating on Common but Differentiated Responsibility

Developing countries the principle of CDR now encapsulated in the UNFCCC means that two

factors determine a nations responsibilities concerning climate change. The first factor is a

particular nations contribution to climate change through GHG emissions; the second is its

economic and technological capacity to cut down emissions.5 The CDR is primarily

retrospective, asset focuses on past additions. to existing stocks of emissions and lays out

responsibilities directed to have remedial effects. Based upon the two central contemplations of

CDR, the UNFCCC differentiates between member countries, with the primary division

occurring between developed and developing country parties. Though the

developed/developing proto type dominates in the convention, there is also intra-group

differentiation between types of developed countries and types of developing countries.

In practice, the principle of CDR.means that developed countries is subject to irrevocable

commitments to cut GHG emissions.6Further, certain, .developed countries are responsible for

money and technology transfer to aid developing countries in adapting to and extenuating the

effects of climate change. In variance, the UNFCCC does not require developing countries to

reduce emissions or contribute funding, because of the minor contribution to existing GHG

stocks and their reduced economic and technological capacity. Moreover, the Convention pays

special attention to the dilemma of so-called least developed countries, as well as countries

that will be especially harmed by climate change. Country designation as Annex I or II is self-

imposed. In other words, the Conference of the Parties to the UNFCCC is not vested with the

power to determine which countries are developed and which are developing. Rather, any

country desiring to be included in Annex I or II may notify the Secretary-General of the

United Nations that it intends to be bound by developed country commitments. There are no

further provisions in the UNFCCC or the Kyoto Protocol that elaborate on the process of

categorizing member nations.7 This makes the international law-making process on climate

change especially endangered.

5Eric A Posner & Cass R. Sunstein, Climate Change Justice, 96 geo. l.J. 1565, 1607 (June 2008) (summarizing the principle as meaning that developed countries have to spend a significant amount of money on emissions reduction, while developing countries do not) 6 UNFCCC 4.2(a) 7 id. (lacking formal guidance on how the Conference of the Parties should determine country designations for purposes of CDR differentiation

Efforts made to Establish CBDR

Principle 12 of the Stockholm Declaration

Resources should be made available to protect and foster the environment, taking into account

the circumstances and peculiar needs of developing countries and any costs which may come

forth from their engulfing. Environmental safeguards into their development planning and the

need for making available to them, upon their request, additional international technological

and financial support for this purpose.

- Principle 6 of the Rio Declaration

The unique situation and requirements of developing countries, particularly the least developed

and those most environmentally endangered, shall be given.special priority. International

actions in the field of environment and development should also address the interests and needs

of all countries.

- Principle 7 of the Rio Declaration

States shall come together in the soul of global partnership to conserve, protect and enhance

the health and integrity of the Earth's ecosystem. In view of the different benefactions to global

environmental degradation, States have common but.differentiated responsibilities. The

developed countries recognize their duties 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.

- Article 3 (Principles), paragraph 1 of the United Nations Convention on Climate Change

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.

- Article 5, Montreal Protocol on Substances that Deplete the Ozone Layer

1. Any Party that is a developing country and whose annual calculated level of consumption of

the controlled substances is less than 0.3 kilograms per capita on the date of the entry into force

of the Protocol for it, or any time thereafter within ten years of the date of entry into force of

the Protocol shall, in order to meet its basic domestic needs, be entitled to delay its compliance

with the control measures set out in paragraphs 1 to 4 of Article 2 by ten years after that

specified in those paragraphs. However, such.Party shall not exceed an 6annual calculated

level of consumption of 0.3 kilograms per capita. Any such Party shall be entitled to use either

the average of its annual calculated level of consumption for the period of 1995 to 1997

inclusive or a calculated level of consumption of 0.3 kilograms per capita, whichever is the

lower, as the basis for its compliance with the control measures.

2. The Parties undertake to facilitate access to environmentally safe alternative substances and

technology for Parties that are developing countries and assist them to make expeditious use of

such alternatives.

3. The Parties undertake to facilitate bilaterally or multi laterally.the provision of subsidies, aid,

credits, guarantees or insurance programs to Parties that are developing countries for the use of

alternative technology and for Substitute products.

- Article 3(1) Kyoto Protocol

The Parties included in Annex I shall, individually or jointly, ensure that their aggregate

anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A

do not exceed their assigned amounts, calculated pursuant to.their quantified emission

limitation and reduction commitments inscribed in Annex B and in accordance with the

provisions of this Article, with a view to reducing their overall emissions of such gases by at

least 5 per cent below 1990 levels in the commitment period 2008 to 2012.

- Article 20(4) Conventions on Biological Diversity

The extent to which developing country Parties will effectively execute their commitments

under this Convention will depend on the effective execution by developed country Parties of

their commitments under this Convention related to financial.resources and transfer of

technology and will take fully into account the fact that financial and social development and

eradication of poverty are the first and cardinal priorities of the developing country Parties.

- Article 21 Conventions on Biological Diversity

1. There shall be a mechanism for the provision of financial resources to developing country

Parties for purposes of this Convention on a grant or concessional basis the essential elements

of which are described in this Article. The mechanism shall function under the authority and

guidance of, and be accountable to, the Conference of the Parties for purposes of this

Convention. The operations of the mechanism shall be carried out by such institutional

structure as may be decided upon by the Conference of the Parties at its first meeting. For

purposes of this Convention, the Conference of the Parties shall determine the policy, strategy,

programme priorities and eligibility criteria relating to the access to and utilization of such

resources. The contributions shall be such as to take into account the need for predictability,

adequacy and timely flow of funds referred to in Article 20 in accordance with the amount of

resources needed to be decided periodically by the Conference of the Parties and the

importance of burden-sharing among the contributing Parties included in the list referred to in

Article 20, paragraph 2. Voluntary contributions may also be made by the developed country

Parties and by other countries and sources. The mechanism shall operate within a democratic

and transparent system of governance.

2. Pursuant to the objectives of this Convention, the Conference of the Parties shall at its first

meeting determine the policy, strategy and program priorities, as well as.detailed criteria and

guidelines for eligibility for access to and utilization of the financial resources including

monitoring and evaluation on a regular basis of such utilization.

The Conference of the Parties shall decide on the arrangements to give effect to paragraph 1

above after consultation with the institutional structure entrusted with the operation of the

financial mechanism.

3. The Conference of the Parties shall review the effectiveness of the mechanism established

under this Article, including the criteria and guidelines referred to in paragraph 2 above, not

less than two years after the entry into force of this Convention and thereafter on a regular

basis. Based on such review, it shall take appropriate action to improve the effectiveness of the

mechanism if necessary.

4. The Contracting Parties shall consider strengthening existing financial institutions to provide

financial resources for the conservation and sustainable use.

Effectiveness of Common but Differentiated Responsibility

It is to be noted that at this point of time the principle of CBDR is proving to be very

inefficient as some of the nations are not prepared to undertake to the obligations of this

principle. The Rio principles, and in particular common but differentiated responsibilities

(CBDR) in Principle 7 are endangered.

Principle 7 of the Rio Declaration8 set out CBDR as a general norm of international

environmental law and Principle 6 provides that the peculiar position of developing countries

should be given dire importance. The Rio Declaration requires that there should be differing

responsibilities for different States given their historical and current contributions to a

particular environmental problem. It also provides that the ability to prevent, respond or control

an environmental problem be taken into consideration in responding to it.9

However, a number of other important issues remain unclear. There is no definition of CBDR

as contained in Principle 7 of the Rio Declaration and no international environmental

agreement before Rio expressly mentions it. A related problem is the absence of definition of a

developing country or a developed country in the Stockholm Declaration and the Rio

Declaration. Secondly, the Stockholm Declaration and the Rio Declaration are both soft law

and ipso facto non-binding. Thus, the views in favor of developing countries together with the

equity and fairness principles underlying Principle 23 of the Stockholm Declaration, and

Principles 6 and 7 of the Rio Declaration are not binding under international law.

So, now the situation of CBDR is as such that a number of developed nations want the

commitments to be eradicated. For E.g. US wants CBDR to be completely deleted and does not

follow it at all. There is need to thoroughly check the emissions made by the country reason

being that there are certain developing countries the emissions of whom were huge during

historical times and they are required to pay for that but they are avoided as they only need to

report their emissions and not pay for them as it is presumed that they are not big a part of the

environment degradation that has been happening and was the main cause for bringing up the

principle of CBDR.

Climate Change -Action on climate change has been weakened by disapproving views on

sharing responsibility between countries. Rio+20 should provide an equitable basis for future

agreements by defining the process of how the principle of Common but Differentiated

8 M. Bookmen 25Columbia Journal of Environmental Law369, 370 (2000). 9The Emission Trading Idea and the Climate Change Convention 26 B.C. Envtl.Aff. L. Rev. 1, 5(1998).

Responsibility (CBDR) applies to individuals and agreeing that the responsibility of each

country should be the aggregate of the responsibilities of its residents.

The Rio Earth Summit also produced the United Nations Convention on Climate Change

(UNFCCC) creating a list (Annex 1) of developed countries incorporating CBDR in its

principles:10

"The Parties [i.e. Countries] 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 fighting climate change and the adverse effects thereof."

In 1997 the Kyoto Protocol required developed countries to reduce their emissions while

developing countries only needed to report their emissions. The USA refused to ratify this

agreement partly because it considered the lack of symmetry would create competitive

distortions.

Since the Kyoto Protocol, arguments over CBDR have been one of the biggest barriers to

action on climate change. Most developing countries have refused to agree to anything which

they consider to contravene the CBDR principle. Some developed countries have refused to

take additional commitments to reduce emissions, as they consider these will reduce their

ability to compete with rapidly growing developing countries.

The principle of common but differentiated responsibility and the UNFCCC

Article 3 of the UNFCCC states that parties should protect the climate system for the benefit

of future and present generations of human kind on the basis of equity and in accordance with

their common but differentiated responsibility and respective capabilities. Accordingly,

developed countries should take the lead in combating climate change and the adverse effects

there of. The word principle is notably absent from the text of Article 3, as the US11, with

support from other industrial nations, opposed the inclusion of the principle in the formation of

10Robert Gibson, Adjunct Professor, School of Energy and Environment, Sustainability Facilitator City 11 United Nations, 1992, UN Framework Convention on Climate Change (UNFCCC), New York: United Nations

the UNFCCC as it added uncertainty to treaty obligations. Its inclusion is thus more a guiding

ideal than prescriptive principle.12

While not a legal obligation itself, the ideal of common but differentiated responsibility has

provided the legal and philosophical basis for the existing legal obligations including the

instruments designed to achieve the objectives of the Kyoto Protocol.

The practical consequences of the CBDR are that differential obligations are imposed on the

parties to a Multilateral Environmental Agreement13. The prime example is the Kyoto Protocol

where only countries listed in Annex I (developed countries and countries with economy in

transition) have quantified emissions reduction obligations under the agreement. Additionally,

the UNFCCC) and the Kyoto Protocol establish general obligations of cooperation towards

technology transfer, and provide for financial assistance for mitigation and adaptation to

developing countries through the Global Environmental Facility (GEF). The GEF operates two

funds under the UNFCCC, the Special Climate Change Fund and the Least Developed

Countries Fund; it also operates the Kyoto Protocol Adaptation Fund. These are all

mechanisms aimed at operational zing the CBDR.

The preamble of the UNFCCC acknowledges "that the global nature of climate change calls for

the widest possible cooperation by all countries and their participation in an effective and

appropriate international response, in accordance with their common but differentiated

responsibilities and respective capabilities and their social and economic conditions". Article

3(1) of the Convention adds the leadership role that developed countries should take, and after

reaffirming the principle of common but differentiated responsibility, it states that "the

developed country Parties should take the lead in combating climate change and the adverse

effects thereof."

Ethical and theoretical underpinnings of CBDR- Common concern and the shared

responsibility of humankind to address climate change underpin the UNFCCC and are a

longstanding notion of international environmental law. Differentiated responsibility is based

upon both historical responsibility of States and differing capacities of States to address climate

change. Fairness to all parties of the UNFCCC/Kyoto Protocol is addressed via the concept of

12Rajamani, L., 2000, The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime 13 Encyclopaedia of Earth

historical responsibility. The bulk of responsibility is placed on those who have most

contributed to and benefited from- the build-up of carbon in the atmosphere.

The differing capacities and needs of nations also underpin this notion of equity. Industrialized

nations have the technical and economic capacity to address climate change. Based upon

differing responsibilities and capacities, the Kyoto Protocol stipulates asymmetric 3 priorities

and commitments for industrialized and developing countries, which are defined by UNFCCC

Annex I. It is the responsibility of developing countries to develop in a sustainable manner and

take measures to adapt to the effects of climate change, whereas developed countries must

commit to mitigating their emissions in accordance with the targets and timelines established

by Article 4.2 of Kyoto Protocol.14

The Clean Development Mechanism (CDM) links industrialized (Annex I) and developing

nations by allowing Annex I nations to invest in projects leading to emissions reductions in

non- Annex I countries that would not have otherwise occurred. This enables both parties to

meet their differentiated responsibilities, with the Annex I nation receiving mitigation credit for

the emissions avoided and the non-Annex I nation achieving their sustainable development

objectives.

Conclusion

Now according to the research analysis I would like to conclude by giving certain suggestions I

believe CBDR is a necessary tool in all global negotiation, especially global climate change

negotiations. The common resources and concerns of climate change are greater than any other

international affair. The necessity for differentiated responsibility is also more distinct in the

climate change issue. The historical responsibility and differentiated responsibilities based on

differences in economic and technological capacity is much more imperative in the fight

against climate change.

I think the reason why Kyoto Protocol is not as effective as it should be is because of the way

the parties of the protocol are divided and because it focuses only on the emission levels of

those countries. By measuring commitments only based on emission levels the issue of climate

change is undermined and division of countries based on just development is not in accordance

to the CBDR principal. A developed country like Switzerland might not have to take much

action to meet their KP commitment since its not a big emitter to begin with. But, they have

14 McManus, Kelly. The principle of common but differentiated responsibility and the UNFCCC

the financial capacity that developing nations do not. So, they should have differentiated

financial commitments, not emission commitments. Similarly, China might not have the same

financial capacity as Switzerland or the historical obligations as Russia, but it does have

affordable technology which can be provided to other developing nations. So, it should have

technological commitments. Since USA has technological and financial capacity and historical

obligations, it will have the same commitments as China in terms of technology, same

commitments as Switzerland in terms of finance and same commitments as all developed

nations because of their historical responsibility. Through this concept, post Kyoto Protocol

should fully embody CBDR by moving away from dividing the parties based on the dichotomy

of developed and developing.

I would further conclude by giving certain points so as to strengthen the CBDR principle

Any individual, regardless of nationality or country of residence, should pay for the carbon

emissions of their activities which are part of rich world lifestyles including using fossil-

fuelled transport, eating meat frequently and heating/cooling living spaces of more than

modest area per person - and the money generated should be used to create low carbon

prosperity.

The responsibility of a country should be the aggregate of the responsibility of its residents.

As there is more enjoyment of rich world lifestyles in developed countries and more

action required to achieve low carbon prosperity in developing countries there should be a

flow of funds from developed to developing countries. As a result, individuals with poor

living standards due to living in developing countries should benefit from funds flowing

into those countries to help them achieve low carbon prosperity.

By:- Gaurang Goel And Akanksha Khare, University of Petroleum and Energy Studies