Honorary Concept Of Common But Differentiated Responsibility

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

“Honorary Concept of Common but Differentiated Responsibility”

Introduction The principle of ‘common.but differentiated.responsibility’ evolved from the notion of the ‘common heritage of mankind’ and is a manifestation of general principles of equity in international law. The principle recognises historical differences in the contributions of developed and developing States to global environmental problems, and.dissimilarities in their financial and technical capacity to tackle these problems. Despite their standard responsibilities, notable dissimilarities exist between the said responsibilities of developed and developing countries. The concept of CBDR was embodied in. Principle 7 of the Rio Declaration at the first Rio Earth Summit in 1992. In view of the numerous offerings to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international run to sustainable development in view of the pressure these societies place on the global environment and of the technologies and economic resources they command. The global environmental threats, such as climate change and its consequences, truly embody the common concern, interest and obligation of all global citizens, Nation-States Governments and all stakeholders but the respective. Potential, geographical circumstances, historic responsibilities or contribution to the challenges and historic credulousness of Nation-States, actually contrast. Thus, the approach or regulatory framework for tackling the challenges requires the consideration of differentiated responsibilities and capabilities of Nation-States with a view to accommodating the principle of equity, justice and human rights. This defines the context in which the. Concept of common but differentiated responsibility and respective capabilities (CBDR) came into existent in most of the multilateral environmental agreements (MEAs). For example, one of the most conspicuous aspects of the 1992 United Nations Conference on Environment and Development (known as “The Rio Declaration”) was the international community's endorsement of differentiated responsibilities between developed and developing States as a means of achieving both global environmental protection and

sustainable development1. Therefore, the concept of CBDR may actually be regarded as a tool brought about on the principle of equality and justice and may be described as “a round peg in a round hole” for sharing roles and responsibilities to balance the uncanny circumstances of historical, geographical and financial consideration, along the global divides of developed and the developing countries.

Origin of Common but Differentiated Responsibility (CBDR)

It was the Stockholm Declaration that first accentuated the need to be fair in addressing international environmental problems by taking the uncanniness.of developing countries into account2. It accentuated that their priorities and needs be considered in order to avoid hardship. It also encouraged the provisions of technical and financial assistance to aid them and expressed the need for international environmental standards to vary in line with the values.

Rio Earth Summit 1992 -The United Nations Conference on Environment and Development (UNCED) took place in 1992 in Rio de Janeiro, Brazil. Government officials from 178 countries and between 20,000 and 30,000 individuals from governments, NGOs and the media participated in this event to discuss solutions for global problems such as poverty, war or the increasing gap between industrialized and developing countries.3There was also the question of how to relieve the global environmental system through. The introduction to the prototype of sustainable development. It accentuates that economic and social progress depends critically on the preservation of the natural resource base with effective measures to prevent environmental degradation. More than 100 heads of states and. governments adopted the 1992 Rio Declaration on Environment and Development with its 27 principles, after long, difficult and often heated debate. Ten years later, the Rio+10 summits adopted the Johannesburg Plan of Action that opens with the following sentence in paragraph 1: “The United Nations Conference on Environment and Development, held in Rio de Janeiro in 1992, provided the fundamental. Principles and the programmed of action for achieving 1

MargreetWewerinke “Addressing Climate Change through Sustainable Development and the Promotion of Human Rights” 2010 pp. 49-50. 2 Stockhom Declaration Principles 12 and 23 3 Hienrich Boll Foundation World Summit 2002

sustainable development. We strongly reaffirm our commitment to the Rio principles, the full implementation of Agenda 21 and the Programme for the Further Implementation of Agenda 21 A cornerstone of the global partnership molded in 1992 to meet the ecological crisis identified even back then, and to integrate the three pillars (environment, social and economic) of sustainable development is Principle 7 of the Rio Declaration: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In. view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.”4 The application of this principle was similarly negotiated in the parallel negotiations of the UN Framework Convention on Climate Change. (UNFCCC), the Convention on Biological Diversity and the Convention to Combat Desertification. CBDR is explicitly contained in Article 3.1 of the UNFCCC. In all 3 “Rio Conventions” it is illustrated in the commitments of developed countries to provide financial resources (including on concessional and preferential terms), technology transfer and capacity building to developing countries. However, the Rio principles, and in particular common but differentiated responsibilities (CBDR) in Principle 7, are systematically. Threatened in the negotiations leading to the Rio+20 Conference.

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Elaborating on Common but Differentiated Responsibility Developing countries the principle of CDR now encapsulated in the UNFCCC means that two factors determine a nation’s responsibilities concerning climate change. The first factor is a particular nation’s contribution to climate change through GHG emissions; the second is its economic and technological capacity to cut down emissions. 5 The CDR is primarily retrospective, asset focuses on past additions. to existing stocks of emissions and lays out responsibilities directed to have remedial effects. Based upon the two central contemplations of CDR, the UNFCCC differentiates between member countries, with the primary division occurring

between

developed

and

developing

country

parties.

Though

the

developed/developing proto type dominates in the convention, there is also intra-group differentiation between types of developed countries and types of developing countries. In practice, the principle of CDR.means that developed countries is subject to irrevocable commitments to cut GHG emissions.6Further, certain, .developed countries are responsible for money and technology transfer to aid developing countries in adapting to and extenuating the effects of climate change. In variance, the UNFCCC does not require developing countries to reduce emissions or contribute funding, because of the minor contribution to existing GHG stocks and their reduced economic and technological capacity. Moreover, the Convention pays special attention to the dilemma of so-called “least developed countries,” as well as countries that will be especially harmed by climate change. Country designation as Annex I or II is selfimposed. In other words, the Conference of the Parties to the UNFCCC is not vested with the power to determine which countries are developed and which are developing. Rather, any country desiring to be included in Annex I or II “may” notify the Secretary-General of the United Nations that it “intends to be bound” by developed country commitments. There are no further provisions in the UNFCCC or the Kyoto Protocol that elaborate on the process of categorizing member nations.7 This makes the international law-making process on climate change especially endangered.

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

Efforts made to Establish CBDR Principle 12 of the Stockholm Declaration Resources should be made available to protect and foster the environment, taking into account the circumstances and peculiar needs of developing countries and any costs which may come forth from their engulfing. Environmental safeguards into their development planning and the need for making available to them, upon their request, additional international technological and financial support for this purpose. - Principle 6 of the Rio Declaration The unique situation and requirements of developing countries, particularly the least developed and those most environmentally endangered, shall be given.special priority. International actions in the field of environment and development should also address the interests and needs of all countries. - Principle 7 of the Rio Declaration States shall come together in the soul of global partnership to conserve, protect and enhance the health and integrity of the Earth's ecosystem. In view of the different benefactions to global environmental degradation, States have common but.differentiated responsibilities. The developed countries recognize their duties that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. - Article 3 (Principles), paragraph 1 of the United Nations Convention on Climate Change The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance.with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof. - Article 5, Montreal Protocol on Substances that Deplete the Ozone Layer 1. Any Party that is a developing country and whose annual calculated level of consumption of the controlled substances is less than 0.3 kilograms per capita on the date of the entry into force of the Protocol for it, or any time thereafter within ten years of the date of entry into force of

the Protocol shall, in order to meet its basic domestic needs, be entitled to delay its compliance with the control measures set out in paragraphs 1 to 4 of Article 2 by ten years after that specified in those paragraphs. However, such.Party shall not exceed an 6annual calculated level of consumption of 0.3 kilograms per capita. Any such Party shall be entitled to use either the average of its annual calculated level of consumption for the period of 1995 to 1997 inclusive or a calculated level of consumption of 0.3 kilograms per capita, whichever is the lower, as the basis for its compliance with the control measures. 2. The Parties undertake to facilitate access to environmentally safe alternative substances and technology for Parties that are developing countries and assist them to make expeditious use of such alternatives. 3. The Parties undertake to facilitate bilaterally or multi laterally.the provision of subsidies, aid, credits, guarantees or insurance programs to Parties that are developing countries for the use of alternative technology and for Substitute products. - Article 3(1) Kyoto Protocol The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to.their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012. - Article 20(4) Conventions on Biological Diversity The extent to which developing country Parties will effectively execute their commitments under this Convention will depend on the effective execution by developed country Parties of their commitments under this Convention related to financial.resources and transfer of technology and will take fully into account the fact that financial and social development and eradication of poverty are the first and cardinal priorities of the developing country Parties. - Article 21 Conventions on Biological Diversity 1. There shall be a mechanism for the provision of financial resources to developing country Parties for purposes of this Convention on a grant or concessional basis the essential elements

of which are described in this Article. The mechanism shall function under the authority and guidance of, and be accountable to, the Conference of the Parties for purposes of this Convention. The operations of the mechanism shall be carried out by such institutional structure as may be decided upon by the Conference of the Parties at its first meeting. For purposes of this Convention, the Conference of the Parties shall determine the policy, strategy, programme priorities and eligibility criteria relating to the access to and utilization of such resources. The contributions shall be such as to take into account the need for predictability, adequacy and timely flow of funds referred to in Article 20 in accordance with the amount of resources needed to be decided periodically by the Conference of the Parties and the importance of burden-sharing among the contributing Parties included in the list referred to in Article 20, paragraph 2. Voluntary contributions may also be made by the developed country Parties and by other countries and sources. The mechanism shall operate within a democratic and transparent system of governance. 2. Pursuant to the objectives of this Convention, the Conference of the Parties shall at its first meeting determine the policy, strategy and program priorities, as well as.detailed criteria and guidelines for eligibility for access to and utilization of the financial resources including monitoring and evaluation on a regular basis of such utilization. The Conference of the Parties shall decide on the arrangements to give effect to paragraph 1 above after consultation with the institutional structure entrusted with the operation of the financial mechanism. 3. The Conference of the Parties shall review the effectiveness of the mechanism established under this Article, including the criteria and guidelines referred to in paragraph 2 above, not less than two years after the entry into force of this Convention and thereafter on a regular basis. Based on such review, it shall take appropriate action to improve the effectiveness of the mechanism if necessary. 4. The Contracting Parties shall consider strengthening existing financial institutions to provide financial resources for the conservation and sustainable use. Effectiveness of Common but Differentiated Responsibility

It is to be noted that at this point of time the principle of CBDR is proving to be very inefficient as some of the nations are not prepared to undertake to the obligations of this principle. The Rio principles, and in particular common but differentiated responsibilities (CBDR) in Principle 7 are endangered. Principle 7 of the Rio Declaration8 set out CBDR as a general norm of international environmental law and Principle 6 provides that the peculiar position of developing countries should be given dire importance. The Rio Declaration requires that there should be differing responsibilities for different States given their historical and current contributions to a particular environmental problem. It also provides that the ability to prevent, respond or control an environmental problem be taken into consideration in responding to it.9 However, a number of other important issues remain unclear. There is no definition of CBDR as contained in Principle 7 of the Rio Declaration and no international environmental agreement before Rio expressly mentions it. A related problem is the absence of definition of a ‘developing country’ or a ‘developed country’ in the Stockholm Declaration and the Rio Declaration. Secondly, the Stockholm Declaration and the Rio Declaration are both ‘soft law’ and ipso facto non-binding. Thus, the views in favor of developing countries together with the equity and fairness principles underlying Principle 23 of the Stockholm Declaration, and Principles 6 and 7 of the Rio Declaration are not binding under international law. So, now the situation of CBDR is as such that a number of developed nations want the commitments to be eradicated. For E.g. US wants CBDR to be completely deleted and does not follow it at all. There is need to thoroughly check the emissions made by the country reason being that there are certain developing countries the emissions of whom were huge during historical times and they are required to pay for that but they are avoided as they only need to report their emissions and not pay for them as it is presumed that they are not big a part of the environment degradation that has been happening and was the main cause for bringing up the principle of CBDR. Climate Change -Action on climate change has been weakened by disapproving views on sharing responsibility between countries. Rio+20 should provide an equitable basis for future agreements by defining the process of how the principle of Common but Differentiated

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

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Responsibility (CBDR) applies to individuals and agreeing that the responsibility of each country should be the aggregate of the responsibilities of its residents. The Rio Earth Summit also produced the United Nations Convention on Climate Change (UNFCCC) creating a list (Annex 1) of ‘developed’ countries incorporating CBDR in its principles:10

"The Parties [i.e. Countries] should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in fighting climate change and the adverse effects thereof." In 1997 the Kyoto Protocol required developed countries to reduce their emissions while developing countries only needed to report their emissions. The USA refused to ratify this agreement partly because it considered the lack of symmetry would create competitive distortions. Since the Kyoto Protocol, arguments over CBDR have been one of the biggest barriers to action on climate change. Most developing countries have refused to agree to anything which they consider to contravene the CBDR principle. Some developed countries have refused to take additional commitments to reduce emissions, as they consider these will reduce their ability to compete with rapidly growing developing countries.

The principle of ‘common but differentiated responsibility’ and the UNFCCC Article 3 of the UNFCCC states that “parties should protect the climate system for the benefit of future and present generations of human kind on the basis of equity and in accordance with their common but differentiated responsibility and respective capabilities. Accordingly, developed countries should take the lead in combating climate change and the adverse effects there of”. The word “principle” is notably absent from the text of Article 3, as the US11, with support from other industrial nations, opposed the inclusion of the principle in the formation of

10

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

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the UNFCCC as it added uncertainty to treaty obligations. Its inclusion is thus more a guiding ideal than prescriptive principle.12 While not a legal obligation itself, the ideal of common but differentiated responsibility has provided the legal and philosophical basis for the existing legal obligations including the instruments designed to achieve the objectives of the Kyoto Protocol. The practical consequences of the CBDR are that differential obligations are imposed on the parties to a Multilateral Environmental Agreement13. The prime example is the Kyoto Protocol where only countries listed in Annex I (developed countries and countries with economy in transition) have quantified emissions reduction obligations under the agreement. Additionally, the UNFCCC) and the Kyoto Protocol establish general obligations of cooperation towards technology transfer, and provide for financial assistance for mitigation and adaptation to developing countries through the Global Environmental Facility (GEF). The GEF operates two funds under the UNFCCC, the Special Climate Change Fund and the Least Developed Countries Fund; it also operates the Kyoto Protocol Adaptation Fund. These are all mechanisms aimed at operational zing the CBDR. The preamble of the UNFCCC acknowledges "that the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions". Article 3(1) of the Convention adds the leadership role that developed countries should take, and after reaffirming the principle of common but differentiated responsibility, it states that "the developed country Parties should take the lead in combating climate change and the adverse effects thereof."

Ethical and theoretical underpinnings of CBDR- Common concern and the shared responsibility of humankind to address climate change underpin the UNFCCC and are a longstanding notion of international environmental law. Differentiated responsibility is based upon both historical responsibility of States and differing capacities of States to address climate change. Fairness to all parties of the UNFCCC/Kyoto Protocol is addressed via the concept of

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

historical responsibility. The bulk of responsibility is placed on those who have most contributed to and benefited from- the build-up of carbon in the atmosphere. The differing capacities and needs of nations also underpin this notion of equity. Industrialized nations have the technical and economic capacity to address climate change. Based upon differing responsibilities and capacities, the Kyoto Protocol stipulates asymmetric 3 priorities and commitments for industrialized and developing countries, which are defined by UNFCCC Annex I. It is the responsibility of developing countries to develop in a sustainable manner and take measures to adapt to the effects of climate change, whereas developed countries must commit to mitigating their emissions in accordance with the targets and timelines established by Article 4.2 of Kyoto Protocol.14 The Clean Development Mechanism (CDM) links industrialized (Annex I) and developing nations by allowing Annex I nations to invest in projects leading to emissions reductions in non- Annex I countries that would not have otherwise occurred. This enables both parties to meet their differentiated responsibilities, with the Annex I nation receiving mitigation credit for the emissions avoided and the non-Annex I nation achieving their sustainable development objectives. Conclusion Now according to the research analysis I would like to conclude by giving certain suggestions I believe CBDR is a necessary tool in all global negotiation, especially global climate change negotiations. The common resources and concerns of climate change are greater than any other international affair. The necessity for differentiated responsibility is also more distinct in the climate change issue. The historical responsibility and differentiated responsibilities based on differences in economic and technological capacity is much more imperative in the fight against climate change. I think the reason why Kyoto Protocol is not as effective as it should be is because of the way the parties of the protocol are divided and because it focuses only on the emission levels of those countries. By measuring commitments only based on emission levels the issue of climate change is undermined and division of countries based on just development is not in accordance to the CBDR principal. A developed country like Switzerland might not have to take much action to meet their KP commitment since it’s not a big emitter to begin with. But, they have 14

McManus, Kelly. “The principle of ‘common but differentiated responsibility’ and the UNFCCC”

the financial capacity that developing nations do not. So, they should have differentiated financial commitments, not emission commitments. Similarly, China might not have the same financial capacity as Switzerland or the historical obligations as Russia, but it does have affordable technology which can be provided to other developing nations. So, it should have technological commitments. Since USA has technological and financial capacity and historical obligations, it will have the same commitments as China in terms of technology, same commitments as Switzerland in terms of finance and same commitments as all developed nations because of their historical responsibility. Through this concept, post Kyoto Protocol should fully embody CBDR by moving away from dividing the parties based on the dichotomy of developed and developing. I would further conclude by giving certain points so as to strengthen the CBDR principle 

Any individual, regardless of nationality or country of residence, should pay for the carbon emissions of their activities which are part of ‘rich world lifestyles’ including using fossilfuelled transport, eating meat frequently and heating/cooling living spaces of more than modest area per person - and the money generated should be used to create low carbon prosperity.

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

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As there is more enjoyment of ‘rich world lifestyles’ in developed countries and more action required to achieve low carbon prosperity in developing countries there should be a flow of funds from developed to developing countries. As a result, individuals with poor living standards due to living in developing countries should benefit from funds flowing into those countries to help them achieve low carbon prosperity.

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