Can you summarise the key issues pertaining to CBDRRC based on a presentation by Lavanya Rajamani?
The principle and the climate regime:
In general, public international law is based on the formal equality of states. The principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC) establishes the common responsibility of states for the protection of the global environment. But in addition it also lays down different standards of conduct for developed and developing nations.
Principle 7 of the 1992 Rio Declaration on Environment and Development states: “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.”
Principle 7 cites two reasons why stricter standards of conduct apply to developed countries: they contribute more to global environmental problems and have greater technological and financial resources to respond to these problems. The 1992 UN Framework Convention on Climate Change (UNFCCC) negotiated at the same time contains a different formulation of the principle.
Article 3 paragraph 1 provides that “[t]he 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.”
While the provisions requires developed countries to take the lead in combating climate change it does not spell out their primary responsibility for changes in the climate system. The CBDRRC is applied by dividing parties into different groups. But only the UNFCCC preamble (noting that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low and will grow) contains a broad reference to the responsibility for greenhouse gas emission. Consequently, most industrialised countries reject an interpretation of the CBDRRC that implies a recognition of any international obligations or liabilities for climate change.
The content of the CBDRRC principle and its application remain deeply contested. Its legal status as well as its ability to guide the design of a future climate regime have been subject to significant academic and political debate. The economic development of some developing nations such as India, China or Brazil has also led to calls from industrialised countries to gradually align the obligations of developed and developing country parties.
A move towards aligning obligations?
Recent developments in the climate negotiations may indicate a broad move towards more symmetry and parallelism. Developing and developed country mitigation action is included in the Bali Action Plan (2007), the Copenhagen Accord (2009), and the Cancun Agreements (2010). In general, the language of the Cancun Agreement was predictive for both developed and developing country parties whereas previously it was prescriptive for the former and predictive for the latter.
But there also remain significant differences. Developed country mitigation often refers to quantified emission reduction commitments or targets. Developing country mitigation does not refer to commitments, and is set in the context of sustainable development, supported and enabled by technology, financing, and capacity building from developed countries. In addition special consideration is given to particularly vulnerable groups of developing countries such as Small Island Developing States (SIDS) and Least Developed Countries (LDCs).
The decision of the Conference of the Parties establishing the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) to negotiation for a post-2020 climate agreement does not contain a reference to CBDRRC. The new agreement will be applicable to all and the work plan aims to raise ambitions with a view to “ensuring the highest possible mitigation efforts by all parties”.
The US has considered this as a breakthrough making it clear that the new agreement will have legal force with respect to all parties, developed and developing countries alike. The EU has said it is a move towards a “single fair and comprehensive legally binding agreement under the Convention that is applicable to all parties”.
The submissions of China to the ADP focused upon the need for “principles of equity and common but differentiated responsibilities be reflected in both the negotiation process and the agreed outcome”. The submission of India also said “India firmly believes that the principles of equity and common but differentiated responsibilities form the bedrock of parties’ efforts to address climate change”.
Hence, disputes over the nature and extent of differentiation between parties to a future climate regime will persist. Nature and extent of differential treatment as well as the boarder notions of equity and CBDRRC will be negotiated in the coming years. The need for a new agreement to be ‘applicable to all’, however, does not require the application in a symmetrical fashion.
CBDRRC is a fundamental part of the conceptual apparatus of the climate regime and forms part of the interpretation of existing obligations and of future obligations. Any instrument ‘under the Convention’ implicitly engages the principles and provisions of the UNFCCC, including equity and CBDRRC, which creates a framework for differential treatment in favour of developing countries in provision of assistance (financial, technological, capacity building).
But the UNFCCC is a living instrument and differential treatment will need to become more fine grained. While there need to be avenues to preserve two decades of rule making under the Kyoto Protocol, the Kyoto style strict separation of parties, with quantified emission targets for Annex I countries only, is unlikely to survive.