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New Zealand Journal of Environmental Law |
Last Updated: 30 January 2023
Common but Differentiated Responsibilities: Adjusting the “Developing” / “Developed” Dichotomy in International Environmental Law
Rachel Boyte*
The principle of common but differentiated responsibilities addresses different historical and current contributions of states to global environmental problems, along with their capacity to mitigate these, while recognising that all nations have a responsibility to provide for the “common heritage of mankind”. The principle affects the obligations of “developing” and “developed” countries under numerous multilateral environmental agreements. It is by virtue of this principle being included in a number of agreements that differential treatment applies to environmental regimes. The principle has its roots both in equity and pragmatism, but it is contended that the effective and fair application of the principle is being undermined due to issues with the current categorisation of countries. This article suggests that amendment to the categories and the means by which nations are grouped under these is necessary in the best interests of a number of “developing” countries, the efficacy and equitability of the principle, and importantly, the global environment. The article proposes means by which these necessary changes can occur, while adhering to the elements of, and strengthening, the underlying legal principle.
*Rachel Boyte, LLB / BA Victoria University. Studying towards an LLM specialising in Environmental Law at the University of Auckland. This article was written as a research essay for LAWENVIR 710 International Environmental Law 2009.
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1. INTRODUCTION
“The dissonance in international environmental dialogue has through the decades focused on the competing needs and desires of developing and industrial countries”,1 and the principle of common but differentiated responsibilities (or “CBDR principle”) is an attempt to form the compromise needed for proactive international agreement in this context. The principle is the doctrinal basis for the application of differential treatment in international environmental law,2 and has its roots both in equity and in pragmatism. The principle addresses different historical and current contributions to global environmental problems and notions of culpability for past actions, as well as manifesting a recognition that global efforts are to be made to combat these problems; efforts which are to be made in a way which takes into account the “differences in [the] respective economic and technical capacity”3 of Developing and Developed nations “to tackle these problems”.4
The principle of common but differentiated responsibilities, while varying to an extent, appears in a significant number of multilateral environmental agreements. The CBDR principle is a close ally of sustainable development. It acknowledges a right of Developing States to pursue development as a goal, with the proviso that this development must be pursued within the confines of sustainability in order to protect the common environment.
The legal status of the principle has been a topic of contention throughout its existence on the international environmental stage, largely as a result of the reluctance of several major world players (notably the United States) to accept its applicability. The last few years have seen changes in international politics which could further affect the status of the CBDR principle. There is no doubt that, while perhaps falling short of being a principle of customary international law, it remains “legally relevant and enforceable”,5 and “has become a cornerstone of burden-sharing structures adopted in international environmental treaties”.6
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The principle of common but differentiated responsibilities forms “the essence of the compact between industrial and developing countries with respect to international environmental protection”.7 It will continue to. However, there are a number of limitations to the principle, and the “ambiguity and inconsistency in the identification of developing countries in international environmental treaties”8 has the effect of causing the principle to push the boundaries to the extent that the legitimacy of its application is weakened.In keeping with the terminology used throughout the literature, this article will utilise the terms Developing and Developed. However, it will go on to suggest that, particularly in the context of the international climate regime, this strict demarcation should be adjusted in the best interests of the environment and, in particular, of a number of Developing nations. The Parties to the world’s international environmental treaties must negotiate an appropriate alternative to the current process of categorisation to allow the principle of common but differentiated responsibilities to have the equitable and effective outcomes it promises. If the principle is to be truly equitable, it should reflect differences to a larger extent than it currently does. It is suggested that objective criteria should be collaboratively formulated, and used to determine which of four categories a country should belong to. Review mechanisms should allow for movement between the categories on a pre-determined temporal basis.
The global environment faces a grave burden. Edith Brown Weiss has noted that “[n]o one country or even group of countries has the capability to protect the environment over time by its own isolated efforts”.9 It cannot be disputed that “[t]he world in 2008 is different from the world in 1992 in important ways”,10 and modification of fundamental principles in the form of clear parameters is desirable to account for the changes and provide an effective, cooperative and fair application of common but differentiated responsibilities into the future.
2. ORIGINS AND DEVELOPMENT OF THE PRINCIPLE
There are five fundamental multilateral environmental agreements with near- universal participation which reflect some configuration of the principle of common but differentiated responsibilities, with these being: the Vienna
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Convention and its Montreal Protocol; the Convention on Biological Diversity; the Framework Convention on Climate Change (“FCCC”), and its Kyoto Protocol; and the Convention to Combat Desertification. The principle, in one form or another, has been reaffirmed throughout international environmental agreements, mandates and decisions, and is a fundamental concept underpinning the international climate change regime.
2.1 Elements of the Principle
As its name suggests, the principle contains two fundamental elements: the notion of common responsibilities of States on all levels to protect the global environment; and the need to take heed of different circumstances, “particularly each State’s contribution to the evolution of a particular problem and its ability to prevent, reduce, and control the threat”.11
The principle is most succinctly described in Principle 7 of the Rio Declaration, which reads:12
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.
The first facet of the principle evolves from the notion of “common concern” and “common heritage of mankind”. It has been recognised that, “[g]iven the reality of ecological interdependence, and the concomitant recognition of the global nature of environmental problems, the protection of the global environment has come to be seen as the common concern of humankind, and not solely a matter of domestic jurisdiction of each individual State”.13
Common responsibilities “and the resultant obligation of cooperation are provided for in many recent international instruments in the fields of the
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environment and development”.14 According to this principle, all States are to actively participate in the formulation and implementation of international environmental law. As was posited in a Report of the Expert Group Meeting, “‘common’ connotes solidarity in protecting the global environment, and thus implies the sharing of burdens in achieving the pursued goals in a manner which reflects equity”.15The importance of participation and formulating agreements in a collabo- rative way, as well as the failure to have effectively done so, was recognised in Agenda 21 which states: “At the global level, the essential importance of the participation in and the contribution of all countries, including the developing countries, to treaty making ... [should be taken into account]. Many of the existing international legal instruments and agreements in the field of [the] environment have been developed without adequate participation and contribution of developing countries, and thus may require review in order to reflect the concerns and interests of developing countries and to ensure a balanced governance of such instruments and agreements”.16
The “cocoon from which the chrysalis of international environmental law emerged”17 is often cited as being the United Nations Stockholm Conference on the Human Environment 1972. It was at this conference that the global perception of environmental problems underwent a fundamental change. At this point, the “international community ... acknowledged, and in some cases addressed, a number of problems that are truly global in scope, such as the depletion of the ozone layer, climate change, [and] the management and protection of biodiversity or land degradation”.18 These environmental problems cannot be confined to the boundaries of one State, and nor can the sole responsibility for them be.
The reflection of equity in the principle of common but differentiated responsibilities pertains to the latter facet. Principle 7 of the Rio Declaration highlights the role Developed countries had in the development of environmental
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problems, and also the increased capacity they have to right these stemming from “the technologies and financial resources they command”.19In the agreements which have been made post-Stockholm, the emphasis has shifted from the commonality of responsibilities and has begun to embrace the notions underpinning the differentiation of these. Although not necessarily being “articulated as a doctrine of common but differentiated responsibilities”,20 the principle was nevertheless implicit in the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. Several articles referred to the requirement to take into account and make special provision for the needs of Developing countries. Article 10 of the Montreal Protocol set up a Multilateral Fund, and embodied the recognition “that developed states have the financial ability to assist developing nations in their compliance with CFC reductions, and that this economic ability coupled with historical culpability for the ozone layer problem justified the creation of an international fund to help developing states reach Protocol goals”.21 In addition to the creation of the Fund, Article 5.1 allows Developing countries to delay compliance with the Protocol by ten years. The climate change regime “surpasses even the Montreal Protocol as the trailblazer of differentiation”.22 Where the Montreal Protocol “treats developing countries differently in their attainment of its central obligations, the climate regime subjects these central obligations to differential treatment”.23 Essentially,
Developing countries have been treated as exempt.
Another significant outcome of the Rio Conference was the adoption of the United Nations Framework Convention on Climate Change (“FCCC”). Article 3 contains the first basic principle of the Climate Convention, and gives the CBDR principle operational force. Articles 3(1) and 3(2) read:24
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.
<http://unfccc.int/resource/docs/convkp/conveng.pdf> (at 18 June 2009).
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Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.
The specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.
The preamble to the FCCC also acknowledges “that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries” and recognises the need for “immediate action” on their part.
The principle is reaffirmed in the Kyoto Protocol, with Article 10 of the Protocol stating that implementation is to take place with Parties “taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances”.25
Throughout the leading multilateral environmental agreements the weight of the principle of common but differentiated responsibilities has arguably shifted to being largely on differential treatment, with the result being that common responsibilities have fallen to the wayside.
In this regard, it is suggested that the contention that surrounds the application of the principle relates to this differentiation of responsibilities, and consequently is the central focus of this article.
2.2 Historical Contribution? The Culpability/Entitlement and Consideration/ Capacity Debate
The “core content of the CBDR principle ... is deeply contested ... and there are at least two incompatible views on its content”.26 One view is that it is based on “the consideration of different levels of economic development, whilst no legal consequences can be drawn from the different contributions of states to the deterioration of the environment”;27 whereas the other is that it is based on “differing contributions to global environmental degradation and not
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[on] different levels of development”.28 While the underlying elements of the principle are relevant, and may impact on the legal status of the principle, “as its core the CBDR principle permits and indeed requires differential treatment between countries in the fashioning of treaty obligations”.29The centrality of notions of culpability remains a contentious element of the principle. Rajamani expresses this dichotomy as culpability/entitlement and consideration/capacity, with the former typically being the premise of Developing countries, and the latter of Developed.30
The emphasis on the contribution of Developed countries to the degradation of the global environment has come predominantly from Developing countries. The 1991 Beijing Ministerial Declaration on Environment and Development, adopted by 41 Developing countries, declared: “While the protection of the environment is in the common interests of the international community, the developed countries bear the main responsibility for the degradation of the global environment.”31 It is this historical culpability dimension which makes the principle of common but differentiated responsibilities distinct from other manifestations of differential treatment in international law. It is also confined to environmental law largely for this reason, as it difficult on the part of Developed states to dispute their role in the problems currently being experienced by the global environment. This responsibility dimension could also arguably be extended to embrace the fact that it is Developing nations that are generally recognised as being the most vulnerable to the effects of environmental degradation.
The most recent multilateral environmental agreements making up the climate change regime are more reflective of the culpability/entitlement premise of Developing countries, rather than the consideration/capacity premise of industrial countries. As mentioned above, the preamble to the FCCC specifically acknowledges the historical and present contribution of industrial countries to the climate change issues and recognises the resultant need for “immediate action” on their part.32
Despite the reluctance of a number of the Developed countries to accept an interpretation which assigns a degree of culpability, the pressures placed on the environment throughout their industrialisation process “is an undeniable historical, as well as contemporary, fact”.33 It is this essentially incontrovertible
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evidence which illustrates why common but differentiated responsibilities have been so widely accepted in international environmental law, and perhaps did not survive in economic contexts such as the New International Economic Order (“NIEO”). In the environmental context, “the developing countries have a strong leverage to induce the developed countries to accept, at least to some extent, differentiated treatment in their favor”.34
2.3 The Responsibilities of Developed Nations
In conjunction with the differentiated responsibilities of Developing States, industrialised nations also take on certain differentiated responsibilities. As a corollary of the fact that the responsibilities of Developing countries are less, Developed nations need to take on higher obligations. However, the differentiated responsibilities of industrialised states are not limited to this, but extend to an obligation to take the lead in addressing environmental problems, and also to assist Developing states through technology transfer and financial assistance.
An attempt to address the issue of technology transfer has been made in all multilateral agreements, including in both the Stockholm and Rio Declarations. Principle 20 of the Stockholm Declaration calls for the promotion of “scientific research and development in the context of environmental problems”35 to take place “especially in developing countries”.36 Flows of information and “transfer of experience”37 is to be “supported and assisted”,38 along with “environmental technologies ... made available to developing countries on terms which would encourage their wide dissemination without constituting an economic burden on the developing countries”.39 Technology transfer provisions are not limited to international environmental law, and there is a potential that their links with economic and trade law, including issues with intellectual property rights, serve to the detriment of its application in the environmental context.
The centrality and value of the responsibilities related to technology transfer to environmental law and sustainable development is embraced by a majority
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of legal jurists. Indeed, Bosselmann has suggested that “[i]f international cooperation ... follows a coherent regime for the transfer of environmentally sound technology (EST), the well being of people, economic prosperity and protection of the environment can be pursued simultaneously”.40
In addition to technology transfer, Developed countries, as a result of both their contribution to environmental problems, and their higher capacity, are to provide financial assistance to Developing nations to fulfil any treaty obligations they may have. An example of this in operation is the Multilateral Fund for the Implementation of the Montreal Protocol. The Fund provides financial and technical assistance in the form of grants or concessional loans to help Developing countries comply with their obligations under the Protocol.41 In general, however, financial assistance under international environmental agreements has been far from forthcoming. Developed countries made a commitment under the Rio Declaration, for example, to increase Overseas Development Assistance levels to reach 0.7 per cent of gross national product, and only five donor countries have reached this target.42
There can be little disputing that “[t]he most serious constraints on envi- ronmental protection in the developing world seem to be financial”.43 It is absolutely fundamental, therefore, that this responsibility is strengthened in a meaningful way, as it, along with technology transfer, essentially forms the key to the effective operation of the principle of common but differentiated responsibilities and to the achievement of sustainable development.
Any suggestions made in this article regarding changes to strengthen the CBDR principle must be considered against a backdrop which has as its focus the proviso that Developed nations “must operationalize and go beyond, in real, concrete and credible ways the financing and technology provisions”44 of environmental agreements. No matter what modifications occur to the application of the principle of common but differentiated responsibilities,
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the promises entered into in multilateral agreements related to “finance and technology transfer, [and] other forms of support for developing country parties— must be made good”.45
In a number of multilateral environmental agreements, the ability of Developing countries to implement the treaty is conditional on Developed countries’ implementation of their commitments. In this sense, industrialised nations are to take the lead by undertaking higher obligations as well as enabling assistance in the form of financial resources and transfer of technology to take place. An example of such a provision is Article 4(7) of the FCCC, which reads:
The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.
Other examples of like provisions can be found in the Montreal Protocol (Article 5(5)), the Convention on Biological Diversity (Article 20(4)), and the Stockholm Convention on Persistent Organic Pollutants (Article 13(4)).
2.4 Environmental Vulnerability and Developing Countries
Not only have Developing countries contributed disproportionately to environ- mental degradation, but they are also disproportionately affected by the adverse effects of environmental problems. An example of the susceptibility of Developing nations can be seen clearly in the context of climate change. Working Group II of the Intergovernmental Panel on Climate Change (“IPCC”) released a report which confirmed that “Africa is one of the most vulnerable continents to climate variability and change”46 as well as that “climate change will hamper sustainable development for most developing countries in Asia”.47
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Climate change impacts, in particular, “will fall disproportionately across countries, with the poorer ones bearing the brunt of the burden”.48It is considered that poor environmental quality is “responsible for about 25 per cent of preventable ill health globally and possibly up to 20 per cent of deaths in developing countries”.49 There are also other stresses, “such as poverty, unequal access to resources, food insecurity and incidence of disease”,50 which exacerbate the vulnerability of Developing nations to the adverse effects of environmental problems, in particular climate change.51
The fact that these States are more vulnerable places a heavier moral obligation on Developed states to actively implement the provisions of multi- lateral environmental agreements, in particular those that relate to solidarity in the form of financial and technological assistance.
There is also, therefore, a need to ensure that those countries that are most susceptible to the effects, and have the least capacity to address these, are those that are highest on the “priority list”. This point is expanded upon in relation to proposals to differentiate between Developing nations.
2.5 “Incentivising” Involvement
The principle of common but differentiated responsibilities emerged not solely out of notions of equity, but also out of pragmatism. The recognition of the need for differentiated responsibilities not only facilitates compliance but also provides an incentive for Developing nations to be involved in international environmental agreements and the formation of these. There is little doubt that there are different priorities for Developed and Developing countries, with “most developed countries’ priorities consist[ing] of problems of environmental degradation”52 while for Developing nations “the attainment of sustainable development and the eradication of poverty are the priorities”.53 These divergent priorities, as well as the consequent lack of “reciprocity of rights and obligations”,54 result in a situation whereby it is “necessary for developed countries to offer some quid pro quo in order to secure the participation of
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developing countries in an international environment agreement concerning their own priorities”.55
2.6 Rajamani’s Summary Equation
By way of summary of the key components of the CBDR principle, Rajamani uses the following useful “equation”:56
CBDR = Capacity + Contribution (Historical + Current + Future)
= Differential Treatment in Favour of Developing Countries + Leadership of Industrial Countries
While this equation is of use, it is contended that, as it stands, there are limitations to the ability of the principle to, in particular, incorporate acknowl- edgement of present and future contributions. This will be explained in more detail in the following sections.
3. LEGAL STATUS — CUSTOMARY LAW?
It has been established that to constitute customary international law the principle of common but differentiated responsibilities would have to be “of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law”57 and the acts concerned must amount to settled practice and “be accompanied by the opinion juris sive necessitates”.58
There are a number of duties recognised as being of customary status which form part of the cooperation principle inherent in the common responsibilities of States. An example is the proviso to the sovereign right of a state to exploit its own resources and to control activities within its borders, which is the duty of cooperation in the control of transboundary pollution and environmental risk. Obligations of prior notification and consultation, as well as immediate notification of countries likely to be affected by situations causing environmental damage, have been established in the Lac Lanoux Arbitration and
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Corfu Channel Case respectively.59 Principle 3 of the Convention on Biological Diversity encapsulates the rights and obligations as follows:60
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
It is somewhat surprising that, while the common responsibilities facet of the principle “is recognized as international customary law, its application with respect to equity ... is not”.61 It has thus far been the case that “States have not yet accepted the idea of differentiated responsibilities as ‘general practice’”.62 In particular, the United States, as well as to varying degrees other large international players, has been reluctant to fully embrace the application of differentiated responsibilities of Developing nations.
The USA is the world’s largest economy, “the greatest consumer of natural resources, and the producer of the most energy and carbon dioxide”.63 It fails to participate in any meaningful way in the alleviation of environmental problems, yet predominantly as a result of its economic size and strength continues to have decisive input into the status of legal principles and their applicability in international environmental law. This is not necessarily equitable, but is likely to remain the case for the foreseeable future.
The United States has for some time used the differential treatment of Developing countries in multilateral environmental agreements as the basis for its refusal to partake in them fully. The former President of the United States, George W Bush, stated that the US would remain opposed to the climate change regime “because it exempts 80 per cent of the world, including major population centres such as China and India”.64 Notably, the United States issued
+pollution+customary+law+rio&source = bl&ots = iEsBsBfp5Q&sig = i5ufp2ebjT3Z5L Wenqct5DHGBt8&hl = en&ei = 3YtGSrOdCobNcGFsawC&sa = X&oi = book_ result&ct = result&resnum = 1> (at 19 May 2009).
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an interpretative statement at the United Nations Conference on Environment and Development, stating:65
The United States understands and accepts that Principle 7 highlights the special leadership role of the developed countries, based on our industrial development, our experience with environmental protection policies and actions, and our wealth and technical expertise capabilities. The United States does not accept any interpretation of Principle 7 that would imply a recognition or acceptance by the United States of any international obligations or liabilities, or any diminution in the responsibilities of developing countries.
The United States policy on this, however, has not been consistent. Indeed, the United States noted in an early 2008 submission “that any future arrangement must reflect the desires of developing countries and indeed all countries to grow their economies, develop on a sustainable basis, and have access to secure energy sources”,66 as well as highlighting that a “shared vision is to be drawn up in accordance with the principle of common but differentiated responsibilities”.67
The end of 2008 saw the election of a new administration to the White House. The current administration has signalled that it is far more sympathetic to the environmental plight than that which was in power before it. It may be that the election of President Obama has “radically shifted the global equation, placing the United States at the forefront of the international climate effort and raising hopes that an effective international accord might be possible”.68 It remains to be seen whether the environmental promise of this administration is lived up to, and whether the consequences affect the status of the principle of common but differentiated responsibilities.
In the meantime, “the lack of consensus today on the precise content of the principle, and the nature of the obligation it entails, makes it difficult to establish the necessary opinion juris the orthodox account of custom would require”,69 with the result that “the principle of common but differentiated responsibilities
<http://www.nytimes.com/2009/03/01/science/earth/01treaty.html?pagewanted=1 & _r=1> (at 10 May 2009).
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can only be perceived as a ‘nascent’ principle of international law”,70 and one that is at least an “increasingly robust component”71 of the same.
4. SUSTAINABLE DEVELOPMENT AND THE ENVIRONMENT
The principle of common but differentiated responsibilities is a specific application of differential treatment, which is considered by most to be confined to the realm of international environmental law. The roots of this principle, however, can be found in “the ideological battles fought over the New International Economic Order”,72 and the principle itself is related to sustainable development and its three pillars: social development; economic development; and environmental protection.
An understanding of the conflicts that arise from the intermingling of economic, social and environmental considerations permeating the histories and ideologies of Developing and Developed countries in the development discourse is essential as it “continues to resonate even today in international environmental dialogue”.73 An area where we see this in sharp focus is with responsibilities related to technology transfer, with Developing nations on the one hand having claimed that “the developed world had a moral duty to assist them in bridging the economic development, inter alia, by transferring technologies to them on concessional and preferential terms”,74 and Developed on the other failing to accept this and instead positing “that technology transfer occurs primarily through business-to-business transactions, emphasizing the role of the private sector and the protection of intellectual property rights”.75 The “ideologically loaded”76 debate over transfer of technology apparent in the context of economic development remains an underlying factor in the shortcomings of the attempts thus far to effectively transfer environmentally sound technologies.
At the Stockholm Conference the world “witnessed a sharp dissonance between developing and industrial countries. Conducted against the backdrop of and driven by the NIEO discourse, developing countries focussed on the pressing need for development in their countries while the industrial countries
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... steered the debate toward the development of a global environmental ethic”.77 The resulting compromise reflected to some extent the fact that environmental protection and economic development were not mutually exclusive or incompatible.The level of economic development and capacity to act was also acknowl- edged as being an important consideration in assigning responsibility for protecting the common environment in the Stockholm Declaration. Principle 23 of the Declaration reads:78
[I]t will be essential in all cases to consider the systems of values prevailing in each country, and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.
Further, Principles 10 and 11 “recommend[ed] that the international community act in concert to help developing countries meet the economic consequences of environmental protection”.79
The focus of this Declaration remained on the commonality of envi- ronmental problems, and noted that these problems stemmed from both underdevelopment in the Developing countries as well as “industrialization and technological development”80 in the Developed world, with Principle 24 advancing that the “environment should be handled in a cooperative spirit by all countries, big and small, on an equal footing”.81 While the recognition of the right to development of Developing nations was a fundamental stepping stone in the process of generating the principle of common but differentiated responsibilities, the central concept remained formal equality, rather than equity, at this point. There was no clear recognition of the higher contribution and consequent higher obligations of developed nations at this point in time.
It was in 1989 that the principle of common but differentiated responsibilities began to develop into the form we currently recognise. United Nations General Assembly Resolution 44/228 “firmly endorses the environment-development link cautiously recognised at Stockholm, and explicitly attributes to industrial countries historical responsibility for certain global environmental problems”.82 The preamble to Resolution 44/228 notes that “the responsibility for containing,
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reducing and eliminating global environmental damage must be borne by the countries causing such damage, must be in relation to the damage caused, and must be in accordance with their respective capabilities and responsibilities”.83 The main responsibility for combating environmental pollution is said to belong to Developed countries.As mentioned, the principle of common but differentiated responsibilities, in a formulation which espoused all the generally understood elements of the principle, was first promulgated in the Rio Declaration. The Rio Conference signified “a breakthrough in the international efforts to integrate environment and development issues”.84 Sustainable development was advanced as being the policy that would henceforth underlie the development of international environmental law. “Also, poverty and international debt were officially recognized as additional causes of environmental degradation, adding to the problems that merged with industrialization, social changes, and advances in technology.”85
At the World Summit on Sustainable Development (“WSSD”), the inextri- cable link between social, economic and environmental concerns was further highlighted. Resolution 55/199 required the WSSD to “ensure a balance between economic development, social development and environmental protection as these are interdependent and mutually reinforcing components of sustainable development”.86 At the 1989 Brasilia Declaration of the Sixth Ministerial Meeting on the Environment in Latin America and the Caribbean it was “noted that there is an ‘indissoluble relationship’ between environment protection and socio-economic development”.87
The relationship between these considerations is multifaceted. Poverty and social and economic underdevelopment can contribute to environmental problems by exacerbating them, while in turn the improving of the environment can alleviate poverty and promote social and economic development. In addition, as efforts to comply with international agreements by attempting to rectify or limit environmental degradation can often be very costly, these can impact negatively by increasing poverty and prolonging social and economic development. Technology transfer and financial assistance is the key to solving the riddle of this relationship. All modifications suggested in this article need to be coupled with an increasing reverence of the significance of these forms of
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assistance, and a strengthening of their role in the international environmental context.
4.1 Scope — Confined to the Environmental Context?
Social development, economic development and environmental protection form the three pillars of sustainable development. The principle of common but differentiated responsibilities, however, is generally advanced as being a principle of international environmental law, with little applicability outside this context. But is this really the case?
At the World Summit on Sustainable Development in Johannesburg in 2002, there was an attempt by Developing nations to extend the principle of common but differentiated responsibilities to apply “to the field of economic development”.88
The Plan of Implementation adopted at the WSSD “contains several references to common but differentiated responsibility, including in the introduction, in the context of efforts to change unsustainable patterns of consumption and production and tackle climate change and air pollution”.89 At the WSSD, Developing countries made a concerted effort “to move the dialogue and locus of action within the sustainable development agenda from the environmental protection to the economic and social development frame of reference, and to underscore the significance of the CBDR principle as the basis for international action in these areas”.90
The recognition of the interrelatedness of economic development, social development and the environment represents a “gradual shift in emphasis”.91 The claim that issues such as “poverty, education, sanitation, health, trade and globalisation”92 are “issues of common concern and that development concerns of developing countries need to be fully integrated into the sustainable development dialogue”93 was legitimised in Johannesburg. Despite resistance from a number of Developed countries to emphasise the relationship, it is hard to deny that the majority of multilateral agreements acknowledge it. As sustainable development, and its focus on the contribution of social and economic development to environmental problems and likewise their alleviation, is likely to remain a concept underpinning environmental agreements, these considerations will only become more important under future agreements.
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Attempts to isolate or restrain one from the other will become more and more difficult to sustain.
5. BOUNDARIES OF THE PRINCIPLE
The principle of common but differentiated responsibilities cannot apply in a vacuum, and at the expense of all else. There are certain limitations to the application of, in particular, the differentiated responsibility element of the principle. Rajamani sees there being “three yardsticks”94 against which the principle must be measured:95
These boundaries “stem from a consideration of the ecological imperative as well as universal participation, and are inspired by the contours of the CBDR principle”96 and in order to be a legitimate principle accepted by all States, while fulfilling its equitable intent, the principle of common but differentiated responsibilities must measure up to these three yardsticks.
The first limitation is that the principle “should not be incompatible with the object and purpose of the treaty in question”.97 Rajamani advances that “[i]f the actions taken in their totality detract from the common environmental goal then differential treatment has gone too far”.98
In the case of common but differentiated responsibilities, there would be limited ability to suggest that it is the operation of the principle, in particular the differential elements, that is responsible for detracting from the “common environmental goal” of most treaties. There are a number of factors which combine to result in many multilateral environmental agreements currently falling short of their object and purpose. Insufficient operation and adaptation of financial and technological assistance provisions, and the often poor lead role taken by a number of Developed nations, are but a few factors which directly impact upon the fulfilment of the treaty vision. Halvorssen suggests that “[i]f the major GHG-emitting developing countries are not given binding reduction commitments, the CBDR principle will have been taken beyond the limits
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of the object and purpose of the Climate Convention”,99 but follows this up with an acknowledgement that “the assumption of binding commitments by... developing countries is still contingent upon the actions of the developed countries”.100 It is suggested that, until Developed nations take the lead in a meaningful way, it would be difficult to suggest that it was differential treatment for Developing countries which resulted in a failure to fulfil the object and purpose of most multilateral environmental agreements.
However, while the application of common but differentiated responsibilities is not decisive in detracting from the achievement of the object and purpose of environmental agreements, it is suggested that in its current form, the principle is threatening to breach the second and third of these yardsticks. This stems from the “indiscriminate deployment of the term ‘developing country’”,101 and the effect of this on the interpretation and operation of the principle.
5.1 Absence of a Definition of “Developing Countries”
There is no definition of Developing or Developed country in any international environmental agreement or Conference of Parties (“COP”) decision,102 and “none of the international environmental agreements undertake to provide a clear definition of the different parties they refer to”.103 There have been situations where COP decisions have resulted in listing of Developing countries, but “no COP decision has yet provided a definition of ‘developing countries’”.104 It has to be said that the “lack of a definition for the category ‘developing countries’ is particularly conspicuous by its absence”.105
The result of this absence is that the CBDR principle fails to measure up to the second of Rajamani’s “yardsticks”, in that there are no real “pre-determined” categories. Indeed, the terminology itself is quite controversial. Rajamani notes at the beginning of her thesis on differential treatment that the terms Developing and Developed must be utilised “in the absence of appropriate alternatives” and “in full recognition of the dangers of over-generalization and reductionism inherent in such usage”.106
In addition, the lack of ability to review the categorisation of the Parties in light of the pre-determined categories, leads one to suggest that the differential
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treatment does not discontinue when differences cease to exist, breaching the third limitation.The principle of common but differentiated responsibilities has as its central focus an allocation of environmental obligations between Developing and Developed countries. These are two rather amorphous and ambiguous categorisations. One uses the terms with little thought as to what really defines a Developing or Developed country, and it is highly likely that these would have quite different meanings depending on subjective views of individuals. There are likely, for instance, to be divergent views on a number of countries which sit on what Rajamani calls the “fuzzy margins”.107
The lack of an adequate definition of Developing and Developed countries has “serious implications for the efficacy and legitimacy of differential treatment”108 and is problematic for the principle of common but differentiated responsibilities. These “seemingly open-ended”109 categories have been adopted in the recent Bali Action Plan, “rather than the static Annex I (and by extension non-Annex I)”110 which are typically used in the climate change regime. It is likely this has been done to allow the categories “to be negotiated anew”,111 which will be not only a highly contentious debate, but one that is necessary to improve the application of the CBDR principle to reflect greater equity and better outcomes for the global environment.
5.2 Differences between Countries and the “Fuzzy Margins”
There are numerous differences between Developing nations, and likewise numerous examples of Developing countries which sit on what Rajamani calls the “fuzzy margins”.112 The lack of definition of Developing countries in either treaty text or COP decisions results in the “current practice in international environmental law treaties [being] far from the principle”.113 What is more, the “broad brush approach to the identification and categorisation of developing and developed nations can fundamentally impact responsibilities and benefits under the treaty” and “results in unjust outcomes”.114
The term “Developing countries” in COP decisions has been a source of confusion.115 A number of non-Annex I countries116 do not consider themselves
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as Developing countries but — due to their status as non-Annex I countries — receive differential treatment in multilateral environmental agreements. There are several Developed countries which promote a “more flexible and evolving categorisation of Parties which will permit differences within and between developed and developing countries”.117 The United States is an example, and “has long sought to differentiate between those developing countries that are major economies/emitters and those that are not”.118There are vast differences between the environmental, economic, political and social contexts of the countries of the world, including between those that have been deemed Developing countries. Little attention is paid to these differences in international environmental law. A clear example of this is in the climate change regime. In this regime, Developing countries are classified according to their non-inclusion in Annex B of the Kyoto Protocol and Annex I of the FCCC. There are about 150 countries in this category, with 130 belonging to the G-77. The remainder are predominantly made up of former East and Central European countries. This is a huge number of countries to be lumped together as essentially being “others”, and gives little or no consideration to the immense differences between them.
As Rajamani points out, “... it would follow logically” from the requirement for the “dissimilar to be treated dissimilarly”, that “the significant differences within the category of ‘developing countries’ constitute relevant differences to be taken into account in fashioning commitments under environmental treaty obligations”.119
This section will illustrate the immense differences between the Developing countries in order to show that there are inequities inherent in the current system of categorisation.
The first of these examples is Turkey, which is a member of the Organisation for Economic Co-operation and Development (“OECD”) but is classified under the World Bank, United Nations Development Programme (“UNDP”) and OECD as being a Developing country. Turkey was first classified as an industrial country under the Montreal Protocol, but was able to be reclassified as Developing following a request in 1991. Turkey refused to sign the FCCC while it remained in Annex I.120 At the Fourth Conference of the Parties a request was
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made that it be deleted from Annex I and II. Turkey then accepted, in 2001,121 its categorisation in Annex I on the condition that it was to be afforded special consideration due to its industrial process being in its early stages. However, while Turkey is now classified as an Annex I industrial country in the FCCC, it remains a Developing country in the Montreal Protocol.As opposed to Turkey, which is not concerned with its classification as a Developing country, the CACAM countries (Central Asia, Caucasus, Albania and Moldova) do not consider themselves as Developing countries but, as they are part of the “non-Annex I” category, they expect to be afforded assistance.
The member states of the Organization of the Petroleum Exporting Countries (“OPEC”) are a “fairly rich group among the developing world”,122 and are all non-Annex I Parties.123 Qatar, Kuwait and United Arab Emirates (“UAE”) are amongst the richest OPEC countries, and have very high CO2 emissions per capita. These countries also have high Human Development Indexes (“HDIs”).
There are a number of discrepancies within the characteristics of the Alliance of Small Island States (“AOSIS”) and Small Island Developing States (“SIDS”). Countries like Singapore, Bahamas, Antigua and Barbuda, and Trinidad and Tobago are very rich with high annual per capita emissions and high HDIs (Singapore ranked 25th in the Human Development Index), whereas others are very poor, including Guinea Bassau and Haiti, and have very low emissions and HDIs.
Mexico and the Republic of Korea are now members of the OECD, which exempts them from being grouped with the G-77, yet they still claim “non- Annex I status under the climate change regime”.124 Further examples include Cyprus and Malta, which became European Union (“EU”) member states in 2004, yet remain non-Annex I countries.125
There can also be inconsistencies between the Developing and Least Developed categories. The Maldives are an example, as they are currently classified as a Least Developed Country, but have a higher income per capita and HDI ranking than India, which is in the Developing country category.126
Below is a table, set out in a European Parliament policy document, which
<http://unfccc.int/resource/docs/2001/sbi/l08.pdf> (at 24 June 2009).
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is illustrative of the vast differences that exist between those countries classified as non-Annex I by the climate change regime.127
Table 1.0 Similarities and differences between Parties to the climate change regime
|
|
Similarities
|
Differences
|
|
OPEC (12
|
Oil producers
|
Algeria, Indonesia, Iran, Iraq, Nigeria and
|
|
countries)
|
and exporters
|
Angola have relatively low incomes per capita;
|
|
|
|
while Kuwait, Qatar and UAE are relatively
|
|
|
|
very rich; Kuwait, UAE and Saudi Arabia have
|
|
|
|
very high per capita CO2 emissions.
Petroleum accounts for more than 80% of the
|
|
|
|
exports of Iran, Angola, Kuwait, Libya, Nigeria
|
|
|
|
and Saudi Arabia. For Indonesia it is less than
|
|
|
|
20%.
|
|
|
|
The HDI in Nigeria and Angola is very low,
|
|
|
|
and is on the relatively high side in Kuwait,
|
|
|
|
Qatar and UAE.
|
|
Alliance of
|
Small, islands,
|
Singapore has very high income per capita,
|
|
Small Island
|
vulnerable to
|
Antigua and Barbuda, Bahamas, Palau, Saint
|
|
States
|
sea-level rise
|
Kits and Nevis, and Seychelles have income
|
|
(AOSIS —
|
|
above $7,500 per capita. Singapore, Trinidad
|
|
42 countries)
|
|
and Tobago, and Cuba have very high
|
|
|
|
emissions per capita.
|
|
Least
|
Very low
|
Bangladesh has relatively high emissions; Cape
|
|
Developed
|
income
|
Verde, Maldives and Samoa have relatively
|
|
Countries
|
|
high HDI.
|
|
(“LDCs”)
|
|
|
|
(50 countries)
|
|
|
|
Africa (53
|
Geographical
|
33 are LDCs; nevertheless, relatively
|
|
countries)
|
unit; and
|
homogenous group of countries.
|
|
|
structural
|
Seychelles, Libya and Equatorial Guinea have
|
|
|
similarities
|
relatively high income per capita. South Africa
|
|
|
|
has relatively high per capita emission levels.
|
|
LAC (Latin
|
Geographical
|
The Bahamas, Trinidad and Tobago, and
|
|
America and
|
unit; and
|
Antigua and Barbuda are among the richer
|
|
the Caribbean
|
structural
|
countries in the region. Per capita emissions
|
|
— 33
|
similarities
|
of Trinidad and Tobago are very high.
|
|
countries)
|
|
Mexico is member of OECD.
|
|
Asia —
|
Geographical,
|
Very high income levels in Bahrain, Israel and
|
|
OPEC —
|
economic
|
Korea (Dem. Rep.). CO2 emissions high in
|
|
AOSIS —
|
and
|
these countries and Kazakhstan, Oman, Korea
|
|
LDCs (27
|
political
|
(Rep) and Turkmenistan. South Korea is a
|
|
countries)
|
|
member of OECD.
|
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5.3 The Effect of Not Having an Adequate and Consistent Definition
The absence of a definition results in a failure to effectively take into account the differences between countries, and to allow these countries to take on suitably differentiated responsibilities. The “[a]mbiguity in the classification of countries creates a legitimacy deficit in the system”.128 If the reasoning behind the application of differentiated responsibilities is indeed the equity of recognising that there are legitimate differences between countries, it seems to undermine the very basis of the principle that all relevant differences are not addressed.
As Rajamani suggests, “[i]f the overriding philosophical rationale for the CBDR principle is the Aristotelian conception that justice requires the dissimilar to be treated dissimilarly”,129 the same “[j]ustice would demand that treaty commitments incorporate a proportionate reflection of relevant differences not just between industrial and developing countries but also between developing countries”.130
Without clear indication as to why a country is classified in a certain way, and in the face of a number of differences between countries in a particular category, one is left with the impression that whether a country is Developing or Developed is merely “a reflection of astute political manoeuvring in the UN system rather than an adequate descriptor for current social and economic ranking”.131 This has severe implications for the legitimacy and equity of the principle and the application of differentiated responsibilities.
The lack of clarity also affects the application of the principle with regard to its requirements for financial assistance and technology transfer. A number of provisions in treaties and COP decisions relating to financial assistance, technology transfer and capacity building have referred to “developing countries” as the beneficiaries. The “broad brush approach to the identification and categorisation”132 of countries as “developing” “can fundamentally impact responsibilities and benefits under the treaty [and] results in unjust outcomes”.133 Such an approach “leaves the countries entitled to differential treatment
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unclear. Some countries may not need the benefit of differential treatment yet may be cornering scarce resources. Some countries may be more deserving than others. The lack of definition renders impossible any effort to highlight relevant differences and tailor the level of commitments to the relevant differences.”134The effect is that there is a skewing of technological and financial assistance away from those nations which are most in need of it. The “sustainable industrial emancipation”135 of a number of underdeveloped and impoverished nations is “dependent on the technological and financial assistance provided by the developed countries”,136 and these countries will not be adequately identified under the system as it currently exists. An example of misguided assistance can be found in the operation of the flexibility mechanisms of the Kyoto Protocol. Most of the Clean Development Mechanism (“CDM”) projects are currently “concentrated in middle-income countries, and Africa and the small island states are bypassed”.137 Africa hosted only 2.6 per cent of the CDM projects registered in 2007, and “more than 30 sub-Saharan countries have yet to benefit from any CDM project activity”.138
Ambiguity and inconsistency “can hamper efficient distribution of scarce resources and it can prevent identification of those countries that bear greater responsibility for contributing to climate change”.139 Rajamani stresses that it “is important that criterion [sic] based on GHG contributions and economic disparities be devised so as to identify the intended beneficiaries of differential treatment, and to assign responsibilities for mitigation”.140
Some modification of the principle and those countries which have thus far been granted differential treatment under it is also indispensable in the best interests of the environment. A number of the “so-called developing countries have incomes and industrial CO2 emission levels on a per capita basis that [are] comparable to those of the developed world and vice versa”.141 A commonly quoted example of this is China, which “is now both the largest and most rapidly growing carbon emitter, and has much higher emission intensity relative to GDP than OECD countries”.142
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Countries which are contributing relatively substantially to global emissions and environmental degradation should be considered separately from those which are not. While it is not entirely fair that a number of Developed nations condition acceptance of further targets on the increased participation of large Developing emitters, it may be that it will have a positive effect. An example is that the EU has proposed an objective of a 30 per cent reduction below 1990 levels by 2020 if, in addition to comparable reductions being undertaken by other Developed countries, “economically more advanced developing countries” contribute “adequately according to their responsibilities and respective capabilities”.143
5.4 Calls to Define
As a consequence of the decision to not use the typical Annex-based terminology of climate change in the Bali Action Plan, it is likely that Parties will now have the “formidable task”144 of defining “developing” and “developed” in the lead- up to Copenhagen. Japan has acknowledged this, stating that Parties will need to “clarify the definition of ‘developed country Parties’ and ‘developing country Parties’”,145 and “identify the scope and criteria of those ‘developing country Parties’ required to take actions”.146
The importance of a definition, or at least a re-look at the categorisation of nations until this stage classified as Developing, has been acknowledged a number of times before. During the lead-ups to both Rio and Kyoto, discussions had taken place regarding an inclusion of criteria into the Annexes, but “these discussions proved bootless”.147
The Montreal Protocol is often quoted as providing the closest to a definition of Developing countries. Article 5 (Special situation of developing countries) states:
Any Party that is a developing country and whose annual calculated level of consumption of the controlled substances in Annex A 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 until 1 January 1999 ...
Negotiations” Working Paper 14460, available at <http://www.nber.org.ezproxy.auckland. ac.nz/papers/w14460.pdf?new_window=1> (at 12 June 2009).
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Article 5 countries are allowed to delay implementation of control provisions and may receive assistance under the Multilateral Fund. Currently, over 120 countries hold Article 5 status.148 As can be seen, the flaw with this “definition” is that it merely contains a definition within a definition. One remains no closer to understanding what a Developing country is. Despite this, when confronted with calls to further refine the definition, the Fourth Meeting of the Parties decided in Decision IV/7 to note that the Open-ended Working Group recommended that no criteria for future classification as a developing country for the purpose of the Montreal Protocol be adopted by the Meeting of the Parties and that the Parties should consider individually applications by Parties for classification as developing countries as and when such applications are made.149Of late, a number of nations, especially Developed, have drawn attention to the absence of a definition, and its consequences for the operation of international environmental agreements, particularly the climate change regime. The EU has called for the differences between Developing countries as well as between Developed and Developing to be taken into account, and “that the economically advanced developing countries ... make ‘fair and effective contributions’ to the climate effort”.150 Australia has submitted that, if the GDP per capita of FCCC Parties is taken as the benchmark, there are “more non- Annex I Parties that are advanced economies than existing Annex I Parties”.151 It recommends that Parties provide on an objective basis for graduation of non- Annex I Parties to Annex I, “with a view to all advanced economies adopting a comparable effort towards the mitigation of greenhouse gas emissions”.152 As well, the United States has suggested “[a]nother issue for consideration ... is how best to apply the concepts of ‘developed’ and ‘developing’ ... in ... the Bali Action Plan”.153
In addition to Developed nations, Bangladesh, “a lone voice amongst developing countries ... stressed the ‘vast differences’ between developing
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countries, in particular between large developing countries and the least developed countries”.154In addition, as a result of the number of countries currently classified as Developing being, or being set to become, significant contributors to environ- mental problems, a number of the more underdeveloped and vulnerable States, such as “the small island states and a big part of Africa are seriously concerned”.155
6. “DEVELOPING” A NEW DEFINITION
If the journey of defining “developing” and “developed” is to be embarked upon, it is recommended that this is done by formulating a set of objective criteria which would be used to determine whether a country falls into one of four categories for the purpose of international environmental law and the application of common but differentiated responsibilities. These categories would be as follows:
(a) Developed;
(b) Rapidly Developing;
(c) Developing; and
(d) Least Developed.
6.1 “Developing” Criteria
In order to effectively and equitably classify a country as belonging to one of the four categories of development, objective criteria need to be created. The formulation of these criteria should be achieved in a collaborative way.
Both economic and social considerations are extremely important to any criteria and subsequent categorisation. It is “[b]asic economic and social comparisons [which] give us some indication of countries’ capabilities to control emissions. For lack of a better measure, annual income per person broadly reflects a country’s financial resources, and may even to some degree be suggestive of technical skills and administrative capacity.”156
However, it could be said that the CBDR principle as it stands “focuses too
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heavily on economic and social, as opposed to environmental, concerns”.157 A country’s categorisation as Developing or Developed is based to a large extent on their membership of political and economic coalitions, usually either the OECD or the G-77. An example is that members of the OECD as well as economies in transition are Annex I of FCCC, and OECD members Annex II. Membership of both the Organisation for Economic Co-operation and Development and the G-77 are based on economic interests, not environmental. For this reason, these groupings, while indicative of capacity and by implication, perhaps historical contribution, are not suitable in and of themselves for forming Party categories for international environmental agreements.It is suggested that the categorisation of countries as Developing or Developed is solely reflective of the capacity dimension of the principle of common but differentiated responsibilities. International agreements do use certain “treaty-relevant criteria”158 but this tends to relate to economic factors that relate to the financial capacity of states. For example, financial support is provided to countries by the FCCC Secretariat if their GDP per capita is less than US$6,500. “[F]unding targets based on the financial position of the country”159 are more commonly used.
If the principle of common but differentiated responsibilities is to incorporate current and future contributions, and as a result live up to Rajamani’s “equation” summary, criteria related to the environment must be used to determine Party categorisation.
Japan, when setting forth a possible three-tiered definition in its submission to the Bali Action Plan, saw the relevant factors contributing to the definition of a Party into one of these as including economic status, capacity to respond (e.g. GDP per capita), share of global emissions, emissions per capita, and relative responsibility for climate change.160 This set of criteria is reflective of a number of appropriate considerations relating to both the contribution and capacity elements of the principle.
If criteria were to be developed, it is envisaged that they would cover both economic, as an indicator of capacity, as well as environmental, which could go some way to indicating contribution. Social criteria could also be relevant to give an indication as to the level of priority which should be afforded to environmental concerns and how they could be balanced with other important human rights. As such, criteria could include GDP per capita; Human Development Index rating; and cumulative carbon emissions (as “a relative proxy of relative contributions to atmospheric change”),161 percentage of world’s
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biodiversity, and environmental vulnerability (i.e. sub-Saharan Africa, low-lying island states, proximity to desert and suchlike).
Hurdles exist which make developing a definition or criteria difficult. There is also a high level of resistance on the part of a number of the larger Developing countries to have differences between them highlighted. It is likely that regardless of this resistance, some of these larger Developing nations are going to be pressured to undertake responsibilities in future environmental agreements. It may be that these countries, when faced with such pressures, will be more accepting of a system whereby an agreed-to set of criteria is determinative of their category and, accordingly, any further obligations.
Rajamani sets out three methods by which Parties can be categorised in international treaties, with these being the definition method, whereby a definition is provided within the treaty providing for identification of parties based on clear criteria; a list, which simply involves a record of all relevant parties; and the auto-election method where parties have the ability to elect themselves to a specific category.162 Rajamani noted that in the context of international environmental law, the emphasis “must be on auto-election by countries, not forcible differentiation (on debatable indicators) and binding targets”.163 However, the creation of objective criteria has worked for the inclusion and graduation of countries to the Least Developed Country category. Whilst there is possibly less resistance to being placed in this category as a result of its diminished obligations as compared to the graduation into a higher category of development for these purposes, there is little reason to think that, if these criteria could be agreed to by all rather than “forced” upon “developing countries”, they would not work equally well. The operation of the Least Developed Country categorisation will be examined below.
The use of criteria to determine a country’s placement in a particular category would be a more objective approach, it is suggested, than the automatic inclusion of large emitters, such as that advocated by Halvorssen. Considerable uncertainties exist as regards “projected future contributions to environmental degradation”.164 There are a range of “driving forces of environmental impact”,165 including future growth of economies, “the increase in their populations and the development of relevant technologies and their
Common but Differentiated Responsibilities 95
access to it”,166 which “are all in the realm of the relative unknown”.167 This is a reason why a review process at set timeframes would be an essential part of any modification.India, for example, is often cited as an example of a rapidly emerging economy with high emissions, which will need to take on emissions targets in the climate change regime should there be a meaningful attempt to curb environmental degradation. However, India’s per capita and cumulative emissions remain low. It has a low Human Development Index, “and an estimated 80 per cent of its population lives on less than US$2 a day”.168 Any range of criteria would have to have an equitable weighting system which effectively takes into account these kinds of considerations to ensure that it fulfils both the capacity and contribution aspects of the principle of common but differentiated responsibilities. The outcome of the application of these criteria should not be affected by pre-determined views on the way in which countries will be categorised. It is not necessarily a given that countries like India, which are frequently resorted to as necessary participants in future efforts, will be classified as anything other than a Developing country following the application of universally agreed criteria and have associated differentiated responsibilities. When it comes to the application of the criteria in order to determine to which category a country should belong, it is recommended that an international representative body undertake the analysis. Following this analysis, the results would be released to each of the Parties. A country would then be able to dispute the results at any stage, but, as the relevant criteria would have been
collaboratively agreed on, there would be a disincentive to oppose.
6.2 Rapidly Developing Countries — A New Category
A great deal of the literature related to the definition of Developing and Developed country categorisations restricts itself to examining ways in which Parties can move between the two categories. In this article, it is suggested that instead of requiring countries to “graduate” to Developed country or Annex I or B status, what is needed is a fourth category. This category would be entitled “Rapidly Developing States” and “graduation” would take place according to a negotiated and objective set of criteria.
While creation of categories would not allow for complete differentiation and the taking into account of the full variety of differences between countries, it is suggested that applying a different standard to each and every country would not be pragmatic. Compliance would become even more difficult to assess,
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and therefore the application of the principle would be further undermined. A definition which uses mutually agreed-to categories of development and levels of responsibility would ensure that Parties were aware of their obligations and that compliance with the same could be ascertained. This would also not require a complete overhaul of the principle, in that there would still be a limited number of Party categories to which differentiated responsibilities were to be applied.The creation of another category of Parties to international environmental agreements is not new. Anita Halvorssen has proposed an amendment to the Kyoto Protocol whereby what she terms “fast-growing developing countries”,169 noted as being those countries with high greenhouse gas emissions, are included in an Annex III to the Kyoto Protocol and given binding commitments under a suggested Annex C. The countries specifically mentioned as being automatic members of the new Annex III would be China, India and Brazil. As mentioned, it is suggested that automatic inclusion is likely to be contentious and even inequitable, and therefore should be avoided.
While Halvorssen’s ideas are confined to the international climate change context, the ideas underpinning it could be extended to other environmental agreements. A new category would serve to colour the interpretation and therefore application of the principle of common but differentiated responsibilities, although some stronger and less ambiguous provisions highlighting this may be necessary. Halvorssen also acknowledges that the involvement of these rapidly developing nations can only be achieved by introducing means by which their compliance with their obligations is facilitated by Developed nations. In this regard, she recommends the creation of an Annex C Mitigation Fund, to be funded by Developed States.
It is proposed that four categories be created, and thresholds of criteria developed by which countries are, in the first instance, classified as belonging to one category. A Least Developed Country category, used frequently throughout multilateral environmental agreements, can be permanently adapted for use in the environmental context.
Not only would a country’s classification affect their obligations under multilateral environmental agreements, but Developed and Rapidly Developing countries would also have strengthened responsibilities related to technology transfer and financial assistance. The highest obligations to provide these forms of assistance will remain on Developed countries, but Rapidly Developing would also be able to benefit from the application of instruments such as the flexibility mechanisms under the climate change regime.
Rajamani has acknowledged that changes along these lines are likely to be beneficial, adding that “[o]nce the various categories of countries are
169 Halvorssen, supra note 6.
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clearly identified, the review mechanism should be directed at evaluating first whether the existing differential commitments broadly reflect the existing differences between countries and next, if any changes to the existing structure of commitments are necessary”.170
6.3 Review Mechanism and Movement between Tiers / “Graduation”
The final “yardstick” which Rajamani sets out in her treatise is the importance of the application of the principle of common but differentiated responsibilities “ceas[ing] to exist when the relevant differences cease to exist”.171 While it is considered that the application of the principle “in relation to compliance with environmental obligations involves a process that changes over time when the country’s capacity to comply improves”,172 it is suggested that, as there is no clear definition or criteria associated with a country’s categorisation in international environmental law, there is little possibility of the principle living up to this. There is no way of determining when the culpability and capacity of any one country is such that the differential treatment which it has been afforded is no longer necessary. The principle is currently very short-term in perspective, and “ignores the changing complexions of developing states”.173 Therefore, following the creation of the four categories of development, and the formulation of criteria to objectively classify each country accordingly, mechanisms by which review and movement between the categories can take place must be determined. For the application of the principle of common but differentiated responsibilities to be legitimate and serve the interests of the environment, treaties which apply it “should have the ability to constantly evolve and adapt to emerging realities”.174
There are review mechanisms throughout multilateral agreements, under which the list of Parties could be amended without any substantial changes to the operation of the treaty. The Convention on Biological Diversity 1992, for example, in Article 20(2) sets out that “[t]he Conference of the Parties shall periodically review and if necessary amend the list”175 in relation to a list of developed and “other Parties” which voluntarily assume the obligations of Developed countries.
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The climate change regime also has, as “one of [its] crucial facets”,176 procedures which are said to allow the regime “to evolve to reflect emerging realities”177 by reviewing “the existing commitments of Parties and extend commitments ... to a wider range of Parties”.178 Once categories are created, and countries included in these, review mechanisms such as these can be used to increase or decrease obligations and commitments accordingly.This would allow for a situation whereby “the notions of ‘responsibilities’ and ‘capabilities’ evolve as the circumstances of countries evolve in the global economy, while the principle stays the same”.179
A number of options have been explored with regard to differentiation of future commitments in, particularly, the global greenhouse gas emissions and climate change context. One scenario set out by Berk and den Elzen is the use of an “increasing participation” model, whereby “the number of parties involved and their level of commitment gradually increase according to participation and differentiation rules, such as per capita income, per capita emissions, or contribution to global warming”.180 This approach is “based on the polluter pays principle but [can be] adjusted for considerations on need (for development) and capacity to act”.181 This could be used as a basis for movement between categories.
As circumstances have been acknowledged as evolving over time, flexibility would also be required to allow countries which experience unpredicted but prolonged issues to adjust their ranking and, accordingly, their international environmental responsibilities.
On the other hand, countries may develop over the terms between reviews, so that they meet a higher threshold of criteria and will be asked to move into a higher responsibility category accordingly. This possibility was examined recently by the European Union, which considered that “[c]ountries whose income increases or whose emissions per capita increase beyond a specific level [could] graduate to the next level and after a few years [be] included in that level which may require them to accept measures relevant for that level”.182
pdf > (at 26 June 2009).
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6.4 Least Developed Countries — A Model?
The category of Least Developed Countries was created in the context of economic development and trade, but has been extended to apply in international environmental law. As development seems to be the defining element of this category, it is suggested that it forms a third dimension to Developing and Developed. The creation and application of this category serves as a model for the creation of a fourth — Rapidly Developing States.
The Least Developed Countries, or LDCs, “represent the poorest and weakest segment of the international community”.183 The current list of LDCs includes 49 countries; with 33 of these in Africa, 15 in Asia and the Pacific, and one in Latin America. A set of criteria was formulated, in accordance with which, in the first instance, Parties were “included” in the Least Developed Country category. Review mechanisms, based on a higher threshold of criteria, were adopted to allow for flexibility and movement in or out of the category. It is suggested that, while perhaps not perfect, there is a great deal to be learned from the existence and operation of this category.
As established in 1971, the initial criteria for designating a country as Least Developed required a low per capita gross domestic product and structural impediments to growth.184 However, a number of improvements to the criteria have been made since 1971.
The current criteria used for a country to qualify as a Least Developed Country are: “low national income (per capita GDP under $900), weak human assets (a composite index based on health, nutrition and education indicators), high economic vulnerability (a composite index based on indicators of instability of agricultural production and exports, inadequate diversification and economic smallness)”,185 and a population not exceeding 75 million. A number of these criteria could be utilised to determine categorisation in international environmental agreements, but would of course be supplemented by environment-based considerations.
New Zealand Journal of Environmental Law
There is also a review process whereby the relevant committee determines threshold levels on each of the criteria as a means by which countries to be added to or graduated from the category can be identified. In order to be added to the Least Developed Country category, “a country must satisfy all three criteria, that is, reach the threshold levels for inclusion based on all three criteria and have a population no larger than 75 million inhabitants”.186 However, the thresholds for a country to “graduate” into the category are higher in order to effectively ensure that this can take place “only after a country’s development prospects have significantly improved, and that the graduated country can sustain its development path”.187 There are several differences in process between inclusion and “graduation”, most of which would be equally applicable to the scenario outlined in this article.
For instance, in order to be eligible for “graduation” out of the Least Developed category, a country must in most cases cease to meet not just one but two out of the three criteria. A country’s eligibility to be included is ascertained once, whereas eligibility for graduation has to be observed over two consecutive triennial reviews; and similarly, inclusion is immediate, while graduation can occur only after three years, which is intended to give the country time to prepare itself for a smooth transition from the list.
7. CONCLUSION
While the principle of common but differentiated responsibilities is fundamental to the operation of the major international environmental agreements, some modifications to the current system need to be made in the interests of its legitimacy, equity and, most importantly, the environment.
The principle has as its basis the three pillars of sustainable development, with these being social development, economic development, and environmental protection. It is a concern that a number of countries resist acknowledging the economic and social aspects of the principle yet at the same time its application and development continues with little recognition of or influence from environmental considerations.
The two “Parties” to which the principle applies are, broadly speaking, Developing and Developed countries. Who are these countries? The lack of a consistent and unambiguous answer throws the principle into a realm in
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which its legitimacy and ability to achieve meaningful outcomes in terms of development or the natural environment are in doubt.In light of the fact that both contribution and capacity underlie the principle, they should both be reflected in the operation of it. To this end, it is advanced that “[d]ifferentiation within the developing countries category would ensure that commitments under environmental treaties are in fact tailored to capacities and contribution, and that those deserving of assistance receive it, and those not so deserving do not. It would also ensure that those capable of taking on specific commitments do so. Such practice would conform to the fundamental tenet underlying the CBDR principle. It would treat equals equally and unequals equally.”188
Due to the dire predicament with which the natural environment is faced, what is needed is unprecedented cooperative effort. Developed countries can no longer make light of their responsibilities under international environmental agreements and must properly take the lead in fulfilling their obligations. Following this lead, those countries classified as Rapidly Developing following the application of objective environmental, economic and social criteria must take on certain associated responsibilities. This is because, “[e]ven if the developed world bears historical responsibility for the greater part of the problem, their contribution to it may be overshadowed by unrestrained industrialization among developing countries in the first half of the 21st century”.189 In the best interests of the environment, it needs to be recognised that the “responsibility for historical incidents or trends ... does not ... relieve the developing world of partial responsibility in the present situation”.190
“Efforts ... must focus on the future, not the past”,191 and the principle of common but differentiated responsibilities, with its emphasis on capacity and contribution coupled with more clearly defined parameters, will be an essential component of international environmental cooperation into the future.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2010/4.html
