Abstract
This article argues that the UN Framework Convention on Climate Change (UNFCCC)’s conception of common but differentiated responsibilities and respective capabilities (CBDRRC) was never effectively implemented through the Kyoto Protocol. The investments under the Kyoto Protocol’s Clean Development Mechanism suggest that CBDRRC has been used by developed countries to buy a “right to pollute”, i.e., maintaining or even increasing their greenhouse gas emissions, while investing in clean energy in developing nations, thus defeating the essence of CBDRRC as intended under the UNFCCC.
Second, it points out that the Paris Agreement reflects a significant shift in the overall concept of CBDRRC, both in terms of its textual understanding as well as its implementation. A qualifier, “in the light of national circumstances”, was added to the principle of CBDRRC in the Paris Agreement, allowing a form of voluntary self-differentiation. This qualifier diluted a top-down, objective analysis of States’ commitments. For several scholars, this shift has meant a softening of the principle, making the “differentiation” more dynamic and flexible.
In the authors’ opinion, the qualifier is a fundamental modification of the principle to make it politically more palatable. It completely disregards the notion of historical responsibility for climate change, which was the cornerstone of CBDRRC as conceived under the UNFCCC. Therefore, rather than presenting a more flexible understanding of UNFCCC’s conception of CBDRRC, the Paris Agreement marks a total departure from it. Lacking an explicit redefinition of the principle of CBDRRC, it is misleading to contend that the Paris Agreement is still anchored in it.
Keywords
The principle of common but differentiated responsibilities and respective capabilities (CBDRRC) was first recognised in the United Nations Framework on Climate Change 1992 (UNFCCC) 1 and later operationalised through the 1997 Kyoto Protocol to the UNFCCC (Kyoto Protocol). 2 The principle has undergone significant transition over the past decades to come to its present status under the Paris Agreement. 3
In this article, we argue that the UNFCCC’s conception of the CBDRRC was, first, never effectively implemented through the Kyoto Protocol, albeit reflected in the text. Second, the Paris Agreement reflects a significant shift in both its textual understanding as well as its implementation. For several scholars, this transition has meant a softening of the principle, making the differentiation more dynamic and flexible. 4 In our opinion, the transition involves a fundamental modification of the principle to make it politically more palatable; it marks a significant departure from its intention under the UNFCCC, evading the underlying rationale of basing mitigation commitments on historical contribution to emissions.
To that end, we will trace the development of the principle from the UNFCCC, through the Kyoto Protocol to the Paris Agreement, highlighting the rationale underlying its inception and understanding in the UNFCCC. Moving on, we argue that the Kyoto Protocol’s Clean Development Mechanism (CDM) was an unsuccessful attempt to operationalise the principle. CDM investments suggest that it has been used by developed countries to buy a “right to pollute”, i.e., maintaining or even increasing their greenhouse gas (GHG) emissions while investing in clean energy in developing nations. This may defeat the essence of CBDRRC as intended under the UNFCCC.
We then explain the States’ divergent and contrasting understandings of the principle which eventually led to its current manifestation and adoption in the Paris Agreement. It exhibits “self-differentiation”, operationalised through a system of nationally determined contributions (NDCs). We argue that self-differentiation is a subjective, bottom-up system, which effectively undermines the UNFCCC’s intention of determining responsibility based on historical contributions.
We will not engage in a merit-based argument, i.e., we do not seek to engage in endorsing or negating any version of the principle or making a prescriptive argument. Our objective is to highlight the ineffective implementation of CBDRRC since its inception, and the shift in its meaning reflected in the Paris Agreement. In the context of international recognition of CBDRRC, the Paris Agreement reflects a modification of the CBDRRC, to an extent that it undermines the rationale on which the principle was initially based.
Understanding the Principle
Although the principle of CBDRRC existed before the 1990s, it was crystallised in the Rio Declaration on Environment and Development, 5 and the UNFCCC. Article 3.1 of the UNFCCC notes that its Parties are obligated to “protect the climate system ... on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”, explicitly placing the burden on developed countries to take the lead in this regard.
The principle, while establishing a common responsibility for protecting the climate system on all States, proposes to factor in the disproportionate historical contributions to GHG emissions to determine the extent of States’ responsibilities under the regime. 6 The principle has two components, “common responsibility” and “differentiated responsibility”.
1.1 Common Responsibility
With the understanding that the adverse impacts of climate change are transboundary, beyond the tangible manifestations of territory and space, environmental concerns have become increasingly global in nature. The impacts of the environmental choices of a few States may be felt globally, albeit in different intensities. Additionally, States’ mitigation and adaptation also differ. Thus, the responsibility of redressing harm due to climate change must be based on an equitable and effective mechanism, 7 rather than placing the responsibility solely on the State(s) on whose territory the harm eventually manifests itself. This notion effectuates a common responsibility on all States to prevent harm to the “common heritage of mankind” i.e., the environment, in the spirit of cooperation and solidarity.
1.2 Differentiated Responsibility
Differentiated responsibility stems from two notions: first, the different contributions of States to climate change in terms of GHG emissions; and second, the different remedial capabilities of States. Prior to 1992, differentiated responsibility was based only on the latter condition. It was during the negotiations at the Rio Conference on Environment and Development that the historically disproportionate contribution of developed countries to climate change was acknowledged and came to be factored in to the understanding of the principle of CBDRRC. 8 Thus, arguably, historical contributions to climate change were the cornerstone of CBDRRC as imagined under the UNFCCC.
Whether historical contributions should have been a determining factor, while establishing obligations for climate change under the UNFCCC and Kyoto Protocol, is a bone of contention. However, since we are not engaging in a merit-based argument, we will not go into the depth of this question. Briefly, the process of factoring in historical contributions finds its roots in the principle of equity. 9 In the context of climate change, this manifests itself as the disparity in the historical carbon emissions amongst States, with industrialised nations having contributed up to two thirds of cumulative emissions. 10 The industrialisation process has advantaged the now-developed nations, while their emissions have caused climate change, which has a universal impact, albeit in varying intensity. Equity would require that those having contributed disproportionately to the creation of the problem and having acquired a disproportionate advantage, bear a larger burden in addressing the problem.
Furthermore, obligations cannot be established with complete indifference to the characteristics of a given State. The individual particularities of developing countries, inequalities of social and economic development, and the consequent disparity in their capacity to respond to climate change, must be considered while establishing obligations. Therefore, factoring in historical responsibility for emissions would lead to an even-handed treatment for all States. 11
Kyoto Protocol of 1997: An Attempt to Operationalise CBDRRC
To codify and operationalise the principle of CBDRRC as set out under the UNFCCC, the Kyoto Protocol was tabled at the Conference of the Parties in 1997. The Protocol is in line with the division of responsibilities between developed nations (Annex I States) and developing nations (non-Annex I States), making a stark distinction between the two groups. In the context of mitigation-related activities, the Protocol sets out mandatory, quantified emission reduction targets for Annex I Parties, making no such mandatory obligation for developing countries. It establishes three flexible mechanisms for the fulfilment of these commitments. This distinction under the Kyoto Protocol adheres to the UNFCCC’s rationale of States’ varied historical contributions to GHG emissions and differentiated capabilities to redress climate change. Consequently, it carves out mandatory emission reduction targets only for developed States.
The authors note that, though ambitious, the Protocol’s mechanisms could not operationalise CBDRRC. 12 To substantiate this claim, let us take a closer look at Kyoto’s most successful mechanism, the CDM, which allows Annex I States to meet their emission reduction targets partly by initiating emission reduction projects in developing countries. When they undertake such projects, Annex I Parties earn Certified Emission Reduction units; each of which allows the emission of one ton of carbon. Effectively, this permits developed States to maintain or even increase their own emissions, while reducing the emissions of developing countries. Developed States’ export of emission reduction activity to developing States, without cutting their own emissions, contravenes the essence of the CBDRRC that the Protocol seeks to operationalise.
To reiterate: emission reduction targets under the Protocol are based on States’ historical responsibility and respective capabilities to fulfil these commitments, thereby giving developing countries a fair chance at development. Maintaining their own level of emissions by investing in projects targeted at cutting down developing States’ emissions, Annex I States seem to be buying a “right to pollute”, thus defeating the CBDRRC principle in practice. 13
The Contrasting Positions
During the ten years following adoption of the Kyoto Protocol, CBDRRC was subject to two, contrasting interpretations, one put forward by Annex I States led by the US and the other by non-Annex I States, led by China and India. Adamant on its stance, the US, one of the world’s leading carbon emitters, never ratified the Kyoto Protocol. In fact, the Protocol never moved into its second commitment period.
Expounding on the concept of “meaningful participation” for all developing countries, the US held the position that certain developing countries must voluntarily assume binding emission reduction targets; while for others, participation in CDM projects or domestic reduction of GHG emissions may be enough. The US Senate’s unanimous Byrd-Hagel Resolution precluded the US from signing any protocol
which would... mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period. 14
Commentators like Paul Harris have argued that the resolution did not oust the principle of CBDRRC but rather served as a less robust alternative to what the developing countries envisioned under the UNFCCC. 15 They argue that “fair sharing of the burden” should entail developing country Parties having quantified emission reduction targets, albeit with flexibility in the time and breadth of commitments. However, such emission reduction should start at the same time as developed country Parties, to ensure that the former do not have an unfair economic advantage.
The developing States, on the other hand, understood this interpretation to be contrary to the UNFCCC’s provisions in Articles 3(1) and 4(2)(a), which indicate that developed States shall take a “lead” in the process. The UNFCCC and the Kyoto Protocol envision developed countries taking the lead in emission reductions while developing countries lead in sustainable development and adaptation.
3.1 Overlooking Historical Responsibility
Thus far, developed States have focused on the “common responsibilities” aspect of CBDRRC, arguing that in furtherance of such responsibilities, developing States should also adhere to quantified emission reduction targets. This effectively sidelines the notion of historical responsibility, thus undermining the “differentiated responsibilities” aspect of CBDRRC, which has been the focus of developing States.
The notion of historical contribution and respective capabilities together constitute the differentiated responsibilities in the context of climate change. 16 By arguing for quantified emission cuts for developing nations starting at the same time, developed countries have failed to appreciate the full nature and extent of differentiation in responsibilities, caused by their historical emissions.
A Shift in the Meaning of CBDRRC
The shift in the States’ position to a more “nuanced” understanding of CBDRRC can be observed beginning with the Bali Action Plan in 2007, progressing through the Copenhagen Accord (2009) and Cancun Agreements in 2010. 17 While Copenhagen envisioned mitigation action for developing countries and moved away from the Kyoto Protocol’s categorisation, Cancun went a step further, placing mandatory obligations on developing countries in a defined trajectory. 18
It was in the Durban Platform for Enhanced Action (DPEA) 19 that the “nuanced differentiation” found its most explicit expression. It placed an obligation to undertake the “highest level of mitigation actions” on all Parties. Interestingly, the Durban discussions also witnessed developing country Parties reaffirming the primacy of the UNFCCC over the DPEA, because of DPEA’s explicit recognition that it is operating under the UNFCCC framework. 20 DPEA reflected a noticeable shift from the UNFCCC and Kyoto Protocol, placing mandatory mitigation responsibilities on all States, with complete disregard for their historical contribution, presumably undermining UNFCCC’s understanding of CBDRRC.
The Lima Call for Climate Action, which was the last step towards the Paris Agreement, was pivotal in this context. A qualifier, “in the light of national circumstances” was added to the principle of CBDRRC, so that it reads as follows: “The Conference of Parties ... Underscores its commitment to reaching an ambitious agreement in 2015 that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances”. 21
The Lima qualifier reflected the bilateral treaty negotiated between US and China, 22 effectively modifying the CBDRRC principle. Rajamani terms this as “dynamic” differentiation, arguing that it is a distinct version of the CBDRRC principle rather than a derivative of the UNFCCC’s version. 23
The modified version of the principle has been imported verbatim into the Paris Agreement, and operationalised through its new system of NDCs. NDCs are a list of voluntary mitigation and adaptation steps that all State Parties are required to undertake, in the light of their respective capabilities and national circumstances. A form of self-differentiation, the NDC system allows States to self-determine the level of their commitments, tailored according to their socio-economic capabilities and national circumstances. Therefore, arguably, as national circumstances evolve, so will the commitments. Every successive set of NDCs should reflect progression from the preceding one. However, the Parties retain the freedom to determine what constitutes such “progression”, making it a bottom-up and subjective exercise.
To reinstate some normative guidance to self-differentiation, Article 4(4) of the Paris Agreement provides that developed country Parties “should” continue “taking the lead by undertaking economy-wide absolute emission reduction targets” while developing countries “should” continue to enhance their mitigation efforts. Since these clauses neither created nor intended to create any additional obligations for developed country Parties, the US came on board. In the final hours leading up to the adoption of the Agreement, there was contention regarding Article 4(4) of the final text, which used the term “shall” for the obligation for developed countries, and “should” for developing countries. If the US were to come on board, “shall” had to be dropped and replaced with “should”. After high-level negotiations, the UNFCCC Secretariat declared that the word “shall” was a “typographical” error and replaced it with “should”, thus securing the US’s participation in the Paris Agreement. 24
Perhaps the provisions regarding financial assistance are the only provisions that remain closely anchored to the UNFCCC framework. Developed country Parties, in continuation of their obligations under the Convention, are required to provide certain financial resources to developing country Parties. The Paris Agreement does broaden the voluntary donor base to “other” Parties, which may arguably include voluntary contributions by developing country Parties, albeit subject to a lesser reporting rigour in relation to such support. 25
The Paris Agreement’s Manifestation of CBDRRC
It is clear, in the progression of CBDRRC from the UNFCCC to the Paris Agreement, that the concept’s manifestation has changed. Our objective is to gauge the extent and nature of that variation. Arguments in this context 26 have termed the variation as a “distinctive differentiation”; a “flexible differentiation”; and a “softening” of CBDRRC. These arguments appear to suggest that the principle still reflects the UNFCCC’s rationale underlying it, and that its manifestation in the Paris Agreement is only a nuanced, self-differentiation unlike UNFCCC’s absolute differentiation.
However, in our opinion, the “progression” of the principle has altered it so fundamentally that it is entirely detached from the UNFCCC framework. Earlier, in discussing the principle as it arose under the UNFCCC, we explained that responsibility for historical emissions was the primary notion underlying differentiation in the level of mitigation commitments for climate change. Additionally, such differentiation was to be guided by the respective capabilities of the State Parties, which was predominantly a top-down, relatively objective enquiry.
The introduction of the Lima qualifier, “in light of national circumstances”, and the subsequent system of NDCs, has allowed each State’s individual appreciation of its national circumstances and capabilities to be the basis for determining its level of commitment under the Paris Agreement. In addition, the requirement that subsequent NDCs should reflect “progression” from the preceding ones is subject to the concerned State’s own determination of what constitutes “progression”. By significantly diluting a top-down, objective analysis of the States’ commitments, the Paris Agreement effectively disregards the notion of historical responsibility for environmental harm for determining the level of commitment required from each State. Effectively, this does not constitute a mere tweak or more flexible understanding of the UNFCCC’s conception of CBDRRC. Rather it is a total departure from the notion of CBDRRC as understood in the UNFCCC regime.
It is not our objective to engage in a merit-based debate about which version is more suitable. We provide an alternative view to the dominant academic thrust that the Paris Agreement’s manifestation of the CBDRRC is but a more nuanced application of the principle as conceptualised under the UNFCCC. To the contrary, the Paris Agreement has altered the principle to such an extent that, effectively, the principle of CBDRRC as set forth under the UNFCCC has ceased to exist. The claim that the Paris Agreement is still anchored in the principle of CBDRRC, albeit with a distinctive form of differentiation from the UNFCCC rather than a derivative form, 27 may be misleading, unless the Parties can come to an explicit redefinition of the principle and its underlying rationale.
Conclusion
The UNFCCC’s CBDRRC principle was anchored in the understanding that, while all States have a responsibility to redress climate change, the extent of responsibility varies. Such differentiation is based on States’ historical contribution to GHG emissions and their respective redressal capacities. The Kyoto Protocol’s attempt to operationalise this principle through the CDM mechanism saw developed States evading their own emission reduction targets, while continuing to support emission reduction projects in developing States, thereby, in practice, undermining the principle of CBDRRC. Nevertheless, the Protocol’s rigorous differentiation between developed and developing country Parties, and their respective commitments, precluded ratification by some key States.
The Paris Agreement made environmental protection more palatable politically, securing universal participation. It overhauled the UNFCCC’s understanding of the CBDRRC principle, by apparently overlooking the States’ historical levels of GHG emissions as a factor in determining States’ level of commitment. While some label this transition as a mere softening of the principle of CBDRRC or making it more flexible, in our opinion, this shift dilutes the original principle as envisioned under the UNFCCC. The self-differentiation mechanism marks a departure from the UNFCCC’s CBDRRC. Therefore, as noted above, an explicit redefinition of the principle of CBDRRC in this context is essential. Without it, arguing that the Paris Agreement is still anchored in the original principle is clearly misleading.
Footnotes
United Nations Framework Convention on Climate Change (adopted 29 May 1992, entered into force 21 March 1994) 1771 UNTS 107.
Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 10 December 1997, entered into force 16 February 2005) FCCC/CP/1997/7/Add.1.
Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) FCCC/CP/2015/L.9/Rev.1.
See, for example, Brunnée, J. and Streck, C. 2013. “The UNFCCC as a negotiation forum: towards common but more differentiated responsibilities”. Climate Policy 13(5): 589–607. Available at https://doi.org/10.1080/14693062.2013.822661, accessed 25 March 2020; and Maljean-Dubois, S. 2016. “The Paris Agreement: A New Step in the Gradual Evolution of Differential Treatment in the Climate Regime?” RECIEL 25 : 151–160. Available at 
, accessed 25 March 2020.
The Rio Declaration on Environment and Development, Rio de Janeiro, 13 June 1992.
Brown Weiss, E. 1995. “Environmental Equity: The Imperative for the Twenty-first Century”, at 17, 21. In: Lang, W. (Ed.) Sustainable Development and International Law. London: Graham and Trotman/Martinus Nijhoff.
Supra, note 6.
Shue, H. 1999. “Global Environment and International Inequality”. International Affairs 75(3): 531–545.
Banuri, K. et al. 1995. “Equity and Social Considerations”. In: Bruce, J.P., Lee, H. and Haites, E. (Eds) Climate Change 1995: Economic and Social Dimensions of Climate Change. Cambridge University Press.
Supra, note 6.
Ibid.
Harris, P.G. 1998. “Understanding America’s Climate Change Policy: Realpolitik, Pluralism and Ethical Norms”. OCEES Research Paper No. 15.
Supra, note 6.
[These strategic documents were formalised by UNFCCC COPs 13, 15 and 16, respectively, and are available online at https://unfccc.int/files/meetings/cop_13/application/pdf/cp_bali_action.pdf; https://unfccc.int/sites/default/files/resource/docs/2009/cop15/eng/11a01.pdf (pp. 4–9); and https://unfccc.int/process/conferences/pastconferences/cancun-climate-change-conference-november-2010/ statements-and-resources/Agreements. Ed.]
Brunnée and Streck, supra, note 4.
Ibid.
Ibid.
Ibid.
See, e.g., supra, notes 4 and 23.
Supra, note 23.