Does the concept of “common but differentiated responsibilities” (CBDR) exist in any other multilateral regime, especially UN treaties? How is it expressed? Is it linked to any kind of dynamic system in the regime whereby one country can graduate from one set of obligations to another? Are the group of countries included in Annex I (and, by the by, Annex II) of the UNFCCC recognized as a grouping in any other multilateral framework, especially UN treaties?
This principle is set out in Principle 7 of the 1992 Rio Declaration which provides: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. “
Sands discusses the emergence of the principle from the two strands of common responsibility and differentiated responsibility (see Principles of International Environmental Law Second Edition, Cambridge pp286-289):
Many environmental treaties including the UNFCCC and the CBD refer to environmental matters as of ‘common concern’. Sands notes that the legal interest reflected in this terminology includes a legal responsibility to prevent damage to it.
In relation to ‘differentiated responsibility’, Sands refers to the 1972 Stockholm Declaration and to a number of treaties including: the 1972 London Convention-measures required to be adopted by parties ‘according to their scientific, technical and economic capabilities’ (Art 11); the 1982 UNCLOS agreement refers to the need to take account of states’ ‘economic capacity’ and the ‘need for economic development’ (Article 207) and the 1985 Vienna Convention which refers to ‘the means at their disposal and their capabilities’ (Article 2(2). There are also references to the special needs of developing countries in a number of instruments including the 1976 Barcelona Convention and Article 20(4) of the CBD, as well as the UNFCCC.
In the CBD for example, Article 20 addresses financial resources and Article 20(4) provides: “The extent to which developing country Parties will effectively implement their commitments under this Convention will depend on the effective implementation 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 economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties.”
The Convention does not elaborate a mechanism for a state to move from one category to another ie ‘developing’ to ‘developed’. In practice, becoming a member of the OECD may be considered to affect status but as I understand it this is a political rather than a legal issue.
In the Basel Convention on the transboundary movement of hazardous and other wastes, an amendment has been adopted (known as the 1995 Ban amendment, Decision III/I, not yet in force) by which a distinction is drawn between countries listed in a new Annex VII (essentially EU and OECD countries) and countries not listed in Annex VII (essentially non-EU/OECD countries) in order to effect an export ban on waste being shipped from Annex VII to non-Annex VII states. so that being listed or not in Annex VII becomes the defining characteristic for treaty obligations.
I am not aware of any regime which elaborates a specific mechanism for countries to move from one ‘development’ category to another. The simpler and more commonly used approach is to use the mechanism whereby Parties’ obligations are determined by listed (or not) in an Annex. This means that a decision by the Parties to amend the annex, to move a Party on or off the relevant list, by the usual amendment procedures can change the obligations of a state or a number of states.
International institutions such as the World Bank and IMF operate their own criteria for differentiating between countries on the basis of socio-economic criteria but most MEAs appears to use the terms ‘developing’ and ‘developed’ without further elaboration.