The Principle of Common but Differentiated Responsibility in Environmental Law

The principle of common but differentiated responsibility has developed from the application of equity in general international law for the special needs of developing countries which must be taken into account in the development, application and interpretation of rules of international environmental law.

Principle 7 of the Rio Declaration states the “States shall co-operate 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.”

Similar language exists in the Art. 3(1) of 1992 Climate Change Convention, which provides that the “parties should act to protect the climate system on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”

The principle of common but differentiated responsibility includes two elements. The first concerns the common responsibility of states for the protection of the environment or parts of it at the national, regional and international levels. The second concerns the need to take account of differing circumstances, particularly in relation to each state's contribution the creation of a particular environmental problem and its ability to prevent, reduce and control the danger. In practical terms, the application of the principle of common but differentiated responsibility has at least two consequences. First, it entitles or may require all concerned states to participate in international response measures aimed at addressing environmental problems. Secondly, it leads to environmental standards which impose differing obligations on states. Despite its recent emergence in the current formulation, the principle of common but differentiated responsibility finds its roots prior to UNCED and is supported by state practice at the regional and global levels.

Common responsibility is the shared obligations of two or more states towards the protection of a particular environmental resource, taking into account its relevant characteristics and nature, physical location, and historic usage associated with it. Natural resources can be the 'property' of a single state, or a 'shared natural resource', or subject to a common legal interest, or the property of no state. Common responsibility is likely to apply where the resource is not the property of, or under the exclusive jurisdiction of, a single state.

As early as 1949, tuna and other fish were 'of common concern' to the parties to the relevant treaties by reason of their continued exploitation by those parties . Outer space and the moon, on the other hand, are the 'province of all mankind.

The conservation of wild animals is 'for the good of mankind’ ; the resources of the seabed, ocean floor and subsoil are 'the common heritage of mankind'; and plant genetic resources have been defined as 'a heritage of mankind'. Recent state practice supports the emergence of the concept of 'common concern', as reflected in the 1992 Climate Change Convention, which acknowledges that 'change in the Earth's climate and its adverse effects are a common concern of humankind', and the 1992 Biodiversity Convention, which affirms that 'biological diversity is a common concern of human kind'.

The differentiated responsibility of states for the protection of the environment is widely accepted in treaty and other practice of states. It translates into differentiated environmental standards set on the basis of a range of factors, including special needs and circumstances, future economic development of developing countries, and historic contributions to causing an environmental problem.

The 1972 Stockholm Declaration emphasized the need to consider 'the applicability of standards which are valid for the most, advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries'. The 1974 Charter of Economic Rights and Duties of States makes the same point in more precise terms: 'policy The environmentals of all states should enhance and not adversely affect the present and future development potential of developing countries.' In the Rio Declaration, the international community agreed that 'environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply', and that 'the special situation of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority'. The distinction is often made between the capacities of developing countries and their needs.

The differentiated approach is ref1ected in treaties like the 1972 London Convention, the measures required are to be adopted by parties 'according to their scientific, technical and economic capabilities'. Other treaties identify the need to take account of states' 'capabilities', or their 'economic capacity' and the 'need for economic development'; or the 'means at their disposal and their capabilities'. The principle of differentiated responsibility has also been applied to treaties and other legal instruments applying to developed countries. Examples include the 1988 EC Large Combustion Directive, which sets different levels of emission reductions for each member state; 1991 VOC Protocol, which allows parties to specify one of three different ways to achieve reduction; and the EC Treaty (as amended by the Maastricht Treaty), which provides that:

Without prejudice to the principle that the polluter should pay, if a meaŽsure involves costs deemed disproportionate for the public authorities of a member state, the Council shall, in the act adopting that measure lay down appropriate provisions in the form of temporary derogations; and financial support from the Cohesion Fund.

Under the 1992 Climate Change Convention, the principle of ' common but differentiated responsibilities' requires specific commitments only for developed country parties and other developed parties, and allows differentials in reporting requirements. The 1997 Kyoto Protocol applies the principle of 'differentiated responsibility' to OECD countries, setting a range of different targets depending upon states' historic contribution and capabilities. The special needs of developing countries, the capacities of all countries, and the principle of ' common but differentiated' responsibilities has also resulted in the establishment of special institutional mechanisms to provide financial, technological and other technical assistance to developing countries to help them implement the obligations of particular treaties. So all the nations belong to the common world and each have some responsibility towards each other to protect the “gifts of the nature”.

The author can be reached at: bharatagarwal@legalserviceindia.com / Print This Article

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