“Emergence of the principle of common but differentiated responsibility in International Environment Law”

The genesis of the concept of Common But Differentiated Responsibilities can be traced to the Principle 7 of the Rio Declaration at the first Rio Summit which was held in 1992.Similar language is found to exist within the 1992 Climate Change Convention which emphasises on the aspect that the parties should propagate those actions to protect the climate system on the basis of the principles of equity and in accordance with the common but differentiated responsibilities and respective capabilities. The most important aspect of the concept of CBDR is that it establishes a legitimate connection between the past economic exploitation of global commons and the responsibility to carry out actions that have the power to mitigate the consequences of such exploitation. The highlight of the principle which makes it unique is the result of the emergence of the historical responsibility. This principle as such comprises of two elements. The first element is the common responsibility where two or more states have a commonly shared obligation to take positive steps towards the protection of particular environmental resources taking into consideration various crucial factors like its characteristics and nature, physical location and historic usage associated with it. This element most likely comes into play where the particular resource is not the property of or under the exclusive jurisdiction of any particular state. The differentiated responsibility of states for the protection of the environment has also found relevance within various international treaties and has resulted in the existence of environmental standards which is a product of an amalgamation of factors like special needs and circumstances, future economic development of developing countries, and historic contributions in causing an environmental problem. This principle is again highlighted in the United Nations Framework Convention on Climate Change, where it is said that 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 the Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration. The UNFCCC also segregated the countries into two different parts — the countries that had “historical responsibility” and those that did not. The first were put in Annex-I of the UNFCCC document while the others came to be known as Non-Annex countries. Article 4 of the UNFCC which explicitly deals with the commitments of the developed countries and technology transfer places the responsibility on the developed countries to provide new and additional financial resources to meet the agreed full costs incurred by the developing country parties to comply with their obligations The Kyoto Protocol, the existing international arrangement on climate change which the agreement from Paris will replace, was based on these principles of CBDR and ‘historical responsibilities’ and had assigned specific emission reduction targets for Annex-I countries. Even the new Paris Agreement which has been adopted by more than 190 countries does not have explicitly differentiated between the variations in the responsibilities of developed and developing countries, but this concept of differentiation has not been totally negated. There has been emphasis placed on the fact that the developing countries shall take steps to achieve economy-wide absolute emission reduction targets while the developing countries should consistently work towards ensuring that they attain the objective of enhancing their mitigation efforts. The Agreement will come into effect in 2020 and by then there will be a clear-cut definition regarding which countries can come under the categories of ‘developed countries’ and ‘developed countries’ or ‘Annex-I’ and ‘non-Annex’. Even though all these efforts have been taken to propagate the agenda of protecting the environment, it remains to see how successful it will be.

Written By: Vaishnavi Menon, a student of NLU Kochi as part of the Internship Program.

Published By: NESFIL

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