CHAPTER II: KEY CONCEPTS OF THE STUDY
2.4. The Common But Differentiated Responsibilities and Respective Capabilities
2.4.2. Origins of the principle
The CBDR principle originally emerged from the application of equity in international environmental law.164 Even though the concept of differential treatment of states existed for long in international instruments,165some of the conceptual elements that are directly behind the CBDR principle were traced back only in the 1970s, at the time of the call for a “new international economic order”.166 They are also found at the UN Conference on the Human Environment in 1972 held in Stockholm,167 and in the enabling clause of the General Agreement on Tariffs and Trade in 1979.168 Within the environment field, the 1989 Montreal Protocol, under the Vienna Convention for the Protection of the
162 Ibid.
163 Ibid.
164 Mbeva (note 19 above; 5).
165 See for instance the Constitution of the International Labour Organization (ILO) (“Differences of climate, habits and customs, of economic opportunity and industrial tradition, make strict uniformity in the conditions of labour difficult for immediate attainment.”) Cited by J. Lee (note 33 above; 30).
166 Resolution A/Res/S-6/ 3201 stating a Declaration on the Establishment of a New International Economic Order under the United Nations Organisation, available at: http://www.un- documents.net/s6r3201.htm.
(Accessed: 25 October 2016).
167 Information on the 1972 Stockholm Human Environment Conference available at:
http://www.unep.org/documents.multilingual/default.asp?documentid=97&articleid=1503. (Accessed:
25 October 2016).
168 ‘The World Trade Organization (WTO) is the only global international organization dealing with the rules of trade between nations. Its goal is to help producers of goods and services, exporters, and importers conduct their business. At its heart are the WTO agreements, negotiated and signed by the bulk of the world’s trading nations and ratified in their parliaments.’ More details on the WTO available at:
https://www.wto.org/english/thewto_e/whatis_e/whatis_e.htm. (Accessed: 10 October 2016); ‘Decision L/4903 of 28 November 1979 by signatories to the General Agreement on Tariffs and Trade (GATT) allows derogations to the most-favoured nation (non-discrimination) treatment in favour of developing countries. Its paragraph 2(c) permits preferential arrangements among developing countries in goods trade. This provision has continued to apply as part of GATT 1994 under the WTO. Information available at:
https://www.wto.org/english/docs_e/legal_e/enabling1979_e.htm. (Accessed: 23 October 2016); See also Pauw (note 153 above; 1).
Ozone Layer, offered one of the first early and outstanding illustrations regarding the implementation of CBDR in an international context.169
It was not until 1992 that the principle was finally recognised as an international principle, due to its adoption as principle 7 in the Rio Declaration at the 1992 United Nations Conference on Environment and Development (UNCED).170 The UNFCCC adopted the CBDR principle as one of the key principles to govern the implementation of the climate change regime it had instituted. Article 3.1 of the UNFCCC states that the parties should protect the climate system for the benefit of present and future generations of humankind, based on equity and in accordance with their common but differentiated responsibilities and respective capabilities, adding that the developed country parties should take the lead in combating climate change and the adverse effects thereof because of the aforementioned.171
The application of the CBDR in the UNFCCC climate change regime led to a dichotomous approach for the share of the climate change responsibilities between the developed countries parties and the developing countries parties. Under the UNFCCC, developed countries are identified as “Annex I countries” and developing countries are identified as “Non-Annex I countries”.172 Annex I countries were in 1992 member states of the Organisation for Economic Co-operation and Development (OECD), along with some few additional states undergoing the process of transition to a market economy.173 On the view of Pauw,174 the UNFCCC bilateral differentiation was a reflection of the economic welfare of countries in the context of 1992, based on the Gross Domestic Product (GDP) per capita.
169 The 1985 Vienna Convention does not refer to CBDR as such. However, it addresses the issue of different responsibilities that different countries need to take on them in accordance with their capabilities to regulate the emission of ozone-depleting substances. For instance, countries had different base years regarding the commitment to phase-out their ozone depleting substances; to developing countries it was accorded delayed compliances if their per capita consumption of certain controlled substances was below a certain threshold; See section 3.1.1.2 for more details on the 1985 Vienna Convention and its 1987 Montreal Protocol; See also Pauw (note 153 above; 1).
170 Conference held from 3 – 14 June 1992 under the aegis of the UN. Report on the conference (entitled:
“Declaration of the United Nations Conference on the Human Environment”) available at:
http://www.un.org/geninfo/bp/enviro.html (Accessed: 16 July 2016).
171 Article 3.1 of the UNFCCC.
172 Ibid Article 4.
173 See section 2.1.2 note 126 above for more details on the OECD organisation.
174 Pauw (note 153 above; 17-18).
It was without surprise that subsequent decisions under the UNFCCC adopted the Convention’s approach of differentiating among member states.175 This was the case for the 1997 Kyoto Protocol which was the first protocol to be adopted under the UNFCCC.
The Kyoto Protocol prescribed the legally binding emission reductions for developed countries (Annex I parties), while developing countries (Non-Annex I parties) were not assigned any reduction obligation.176
The interpretation that countries had on the CBDR in 1992 made it easy for them to agree on the UNFCCC climate change regime. Yet, thereafter the same CBDR interpretation by countries became a source of considerable obstacles for countries to keep their commitments.177 Negotiating countries had recurring discussions regarding a new approach for the application of the CBDR principle for the period post Kyoto.178 Pauw179 argued that the differential approach applied by the UNFCCC became very controversial because it left massive emissions increasingly unregulated from major emitting developing countries such as China, India, Brazil and South Africa, which are now all among the world’s largest GHG polluters.
However, the difficulty in addressing climate change under the UNFCCC interpretation of the CBDR principle became clear in this way: any efforts that were deployed by developed countries under their Kyoto legally binding obligation to reduce GHG emissions were felt to have a great chance of being offset by the quickly increasing GHG emissions of unregulated major developing countries emitters.180 This undisputable failure led to the question about the utility and legitimacy of the CBDR principle as interpreted and applied under the UNFCCC to be the international climate regime guiding principle in an attempt to address the challenge of climate change by way of mitigating the global GHG emissions.181 However, scholars such as Bortscheller182
175 See Articles 2 and 4 of the UNFCCC.
176 See Articles 3 and 4 of the 1997 Kyoto Protocol for more details.
177 Pauw (note 153 above; 23-24).
178 Ibid.
179 Ibid.
180 Ibid Pauw; Lee (note 33 above; 30).
181 C.D. Stone ‘Common but Differentiated Responsibilities in International Law’ (2004) 98 AJINTL 276 at 280
182 MJ. Bortscheller ‘Equitable but Ineffective: How the Principle of Common But Differentiated Responsibilities Hobbles the Global Fight Against Climate Change’ (2010) 49 Sus. Dev. L & Pol’ Y 49 at 49.
argued that the CBDR was a sound principle that the international environment community has failed to apply correctly in the climate change field.
The thing is, from a conceptual perspective, the CBDR principle was not conceived to be a static principle, but rather as a dynamic one. Its vocation was to accommodate countries respective circumstances in any issue of common or global interest as it was the case for environmental concerns in the seventies.183 That is why, depending on the issue that is the focus of a treaty, and on the objective of a treaty, the CBDR principle has been applied diversely by different multilateral environmental agreements over the years.
2.4.3. Application of the CBDR principle by neighbor Multilateral