LUND UNIVERSITY
Faculty of Law
Environmental Law in an International Context
JUCN21
Teachers: Annika Nilsson, Josefin Godlund
Spring Term 2015
The Same but Different
The Fairness, Bias and Justice of Common but
Differentiated Responsibilities in Climate
Change Law
Name: Alice Gould
Date: 28/05/2015
E-mail address: alice.gould.93@gmail.com
Table of Contents
Introduction
3
The Rio Conference
5
The Justifications for CBDR
8
Issues with Fairness and Justice
12
Analysis
14
Bibliography
19
Introduction
“International environmental law (IEL) has always been a contested project”1 and one of the
most controversial aspects of IEL is the concept of Common but Differentiating
Responsibilities (CBDR). In the context of IEL, CBDR is where there may be an
environmental regime that States have agreed to participate in; however, not all States have
the same responsibilities within the context of the regime. It is usually the case that
developing States have less strict burdens and responsibilities.
This essay shall examine CBDR in climate change law with particular reference to the
principle of fairness – is it right for States to be treated unequally? The main purpose of this
essay will be to look at how the law is shaped to assist developing countries and examine and
analyse the justifications for doing so.
This paper is limited due to time and allowed length. Whilst the North-South divide is a large
and complex part of IEL, I am choosing only to focus on CBDR that relate to climate change.
Even within the topic of CBDR I am looking mostly at evaluating whether or not the regime
can be considered to be fair from a legal perspective. A further restriction I set myself was the
amount of content I chose to review. I tried to stick to the relevant international law, rather
than looking at how the law played out at a state level.2
To write this essay I mainly relied on secondary legal literature such as articles and textbooks
to help illuminate the issue. However, I also researched the relevant legal documents and
treaties. The main sources I used are taken from the United Nations Conference on
Environment and Development, as well as the articles: “Against fairness?
International environmental law, disciplinary bias, and Pareto justice” by Mario Prost and
Alejandra Torres Camprubi, and “Developing states and international environmental law: the
importance of differentiated responsibilities” by Duncan French. The main textbook I looked
at was Ulrich Beyerlin and Thilo Marauhn’s “International Environmental Law”.
Mario Prost, Alejandra Torres Camprubi, “Against fairness? International environmental law, disciplinary
bias, and Pareto justice” [2012] Leiden Journal of International Law 379 (Herein after: “Against Fairness”).
2 It must be noted that the concept of the North-South divide should not be overstated, and is an oversimplified
idea. It cannot be said that there is homogeneity throughout the whole of either the North or the South, and it
would be a mistake to say so. However, for the purposes of this essay I shall retain its use as it has value in the
real world and environmental negotiations.
1
The structure of the essay allows for the chapters to be simple and distinct from one another.
The second chapter will start the paper with a brief view of how the North-South divide is
presented to us, and what effects this has on the law. The third chapter will look at the history
of CBDR and how the concept was created under the Rio declaration. Next, the fourth
chapter will start to analyse what reasons are necessary to justify CBDR for separate
countries. The fifth chapter will take this idea further, and look at whether CBDR are truly
fair in IEL. Finally, the last chapter will be the analysis, which will bring together everything
discussed above through evaluative discussion.
In order to fulfil the subject of this essay I will ask, and attempt to answer several questions.
Why should different countries be given different standards to protect the global
environment? What reasons are there for doing this? Is it fair that different States are held to
different standards? Does this follow the rule of law?
These questions shall be answered once the paper is concluded.
The Rio Conference
Differentiating responsibilities in IEL were first formalised at the United Nations Conference
on Environment and Development (UNCED, hereafter referred to as the Rio Conference).
This took place from the 3rd to 14th of June in 1992 and was a major environmental United
Nations conference that took place in Rio de Janeiro with 172 governments participating.
The presence of the North-South divide was immediately clear at the conference. On the one
hand, the claims for distributive justice from the developing countries to the industrial states
were met with little willingness. On the other, the developing countries resisted the industrial
countries requests to become more democratic and “take better care of their natural
resources”.3
Malaysian Prime Minister Mahathir Mohamad summarised the tension of the North-South
divide when he said:
The poor are not asking for charity. When the rich chopped down our forests, built
their poison-belching factories and scoured the world for cheap resources, the poor
said nothing. Indeed they paid for the development of the rich. And yet any
suggestion that the rich compensate the poor adequately is regarded as outrageous. As
colonies we were exploited. Now as independent nations we are to be equally
exploited.
However, the Rio Conference made headway in stopping this exploitation. Possibly one of
the most visible outcomes was that the responsibilities of developed and developing countries
were to be differentiated. This was done to help achieve the targets of both protecting the
environment and creating sustainable development simultaneously.4 Therefore, whilst the Rio
Conference was a provocative debate, the willingness of both the North and the South to
listen to each other and cooperate was shown.
The Rio Conference produced the Rio Declaration on Environment and Development. This
document comprised of 27 principles. Of particular relevance to this paper and CBDR are
principles 6 and 7, which are as follow:
Principle 6: The special situation and needs of developing countries, particularly the
least developed and those most environmentally vulnerable, shall be given special
priority ….
3
Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Hart Publishing Ltd 2011) 14.
Duncan French, “Developing states and international environmental law: the importance of differentiated
responsibilities” [2000] International & Comparative Law Quarterly 35 (Herein after: “Developing States”).
4
Principle 7: States shall cooperate in a spirit of global partnership to conserve, protect
and restore the health and integrity of the Earth's ecosystems. 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.
In particular, Principle 7 was considered particularly controversial and both the developed
and developing States were left unsatisfied by this conclusion.5 The developing countries
noted that Principle 7 did not contain any legal responsibility for the past and current
dilapidation of the environment caused by the North.
The developed states were also unhappy with Principle 7. The US created an interpretative
statement surrounding Principle 7 that stated it only acknowledged “the special leadership
role of developed countries” because of their “wealth, technical expertise and capabilities”. 6
Furthermore, it also specified that the US alleged that Principle 7 does not “imply a
recognition … of any international obligations … or any diminution in the responsibility of
developing countries”.7
Even with the various condemnations of the Rio Declaration from both the North and the
South, the fact that it changed IEL significantly cannot be denied. One of the most relevant
facts is that Principle 7 recognises CBDR as having significant legal implications.8
CBDR, as stated under Principle 7 “responds to this divergent situation of both state groups
by pursuing a twofold conceptual approach.” 9 The first part of this twofold approach is to
recognise that both state groups have accountability to protect the environment and therefore
need to cooperate. The second aspect recognises that whilst the two groups have this
accountability in common, it is to be differentiated between the two. The burden of
responsibility is mostly carried by the North.
“Developing States” 36.
UN Doc. A/CONF.151/26 (Vol.IV) (1992), 20.
7
UN Doc. A/CONF.151/26 (Vol.IV) (1992), 20.
8
“Developing States” 38.
9
Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Hart Publishing Ltd 2011) 63.
5
6
Mickelson points out that differing interpretations of Principle 7 raises the question as to
whether CBDR propagates the “ability to pay or a responsibility to pay”10:
“On the one hand, it [Principle 7 of the Rio Declaration] can simply reflect a
pragmatic acceptance of, and response to, the fact of differing levels of financial and
technological resources available to countries in different economic circumstances.
On the other hand, it can be said to reflect an acknowledgment of the historic, moral
and legal responsibility of the North to shoulder the burdens of environmental
protection, just as it enjoyed the benefits of economic and industrial development
largely unconstrained by environmental concerns.”11
K. Mickelson, ‘South, North, International Environmental Law, and International Environmental Lawyers’,
(2000) 11 Yearbook of International Environmental Law 52.
11
K. Mickelson, ‘South, North, International Environmental Law, and International Environmental Lawyers’,
(2000) 11 Yearbook of International Environmental Law 70.
10
The Justifications for CBDR
Whilst so far this essay has looked at the legal process in which CBDR came into existence
through the Rio Conference, this essay shall now turn to look at the reasons that can justify
two States having different legal responsibilities for the same problem, and overall how that
can fit with the rule of law.
Beyerlin and Marauhn write in their book: “[i]n order to ensure that the outcomes of
interstate decision making processes are just and fair, unequal states must be treated
unequally.”12 This chapter will look at the various reasons these states can be considered
unequal and deserve unequal treatment, before they are analysed in the final chapter.
The two most cited reasons for the countries of the North-South divide having different
responsibilities is that the North has a duty to take on more responsibilities as it is the one
historically responsible for the majority of environmental damage. Similarly, it is considered
that the North is more capable to solve the problems. 13 Whilst this argument may be true, it is
not all encompassing. I shall address three more justifications for CBDR: that the specific
needs of developing countries must be taken into considerations in international agreements;
to create a “global partnership”; and finally, to persuade states to join multilateral
environmental agreements when they might not otherwise.14
The first justification for CBDR is relatively straightforward. The developed, Northern
countries caused the environmental degradation, and should therefore be expected to have a
larger share of solving the problem. In the UN General Assembly Resolution that convened
UNCED it is stated:
“the responsibility for containing, reducing and eliminating global environmental
damage must be borne by the countries causing such damage, must be in relation to
the damage caused and must be in accordance with their respective capabilities and
responsibilities”. 15
12
Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Hart Publishing Ltd 2011) 63.
“Developing States”46.
14
“Developing States”46.
15
Sixteenth preambular paragraph, UNGA Res. 44/228.
13
There has always been a “striking asymmetry” 16 between the resource use of developed and
developing states. In particular, it is almost always the North that benefits from exploiting
resources.17 Therefore, as Hurrell and Kingsbury write: “as principal beneficiaries of past
emissions, [the North should] bear a disproportionate share of the costs”.18
However, the concept of the North’s guilt is not as clear as it initially sounds. In fact, by
simply saying that it is the North that is responsible, several issues arise. To begin with it is
very difficult to measure how much damage each country actually caused, and far more
difficult even then to say how much responsibility that they have due to this damage.
Translating this into practice is yet another hurdle.19 The next issue that arises from basing
differentiation around a country’s share of environmental dilapidation comes from the
attitudes of developing states. Much of the South would argue that the responsibility of the
North extends past the environmental damage they caused, and into other areas affected by
their negative actions. One of these arguments relates around the fact that industrial states
have had a huge economic benefit from degrading and exploiting the environment, and
because of this should pay more money in compensation.20 Finally, another issue that may
arise from differentiating between responsibilities in IEL due to the state’s contribution to
environmental damage, is that many may think that the main responsibility for IEL must
belong to the North and the developed states.21 This should not be the case. The developing
countries have an incredibly large capacity to cause damage to the environment. The South
contains greater amounts of land than the North (large areas of which are not industrialised)
and has around four fifths of the globe’s population.
The next reason for CBDR relates to countries present ability to aid environmental issues.
This gives a requirement for countries with superior technology to aid other countries’
international commitments. Evidence of this can be seen in the Rio Declaration Principle 7
which mentions “technologies and financial resources”.
One thing that international law makers should be aware of, however, is that whilst
‘respective capabilities’ is a useful reason for CBDR, it should not be used as an excuse to
A. Hurrell and B. Kingsbury, “An Introduction” in A. Hurrell and B. Kingsbury (Eds), The International
Politics of the Environment (Oxford University Press, 1992), 39.
17
“Developing States”47.
18
A. Hurrell and B. Kingsbury, “An Introduction” in A. Hurrell and B. Kingsbury (Eds), The International
Politics of the Environment (Oxford University Press, 1992), 39.
19
“Developing States”48.
20
“Developing States” 48.
21
“Developing States” 49.
16
exclude developing States from the decision-making process.22 Therefore, the justification of
‘respective capabilities’ is “simply a means of utilising the resources of the North, for the
benefit of the South.”23
A third justification for the differentiating responsibilities within the North-South divide is
due to the special circumstances of developing countries when creating and implementing
international law. Whilst the previous two justifications have been based around the
responsibilities of the North and respective capabilities, having differentiating responsibilities
due to the South’s needs is “quite clearly based on recognition of the fact that tackling global
environmental protection, or adapting to the consequences thereof, is not a priority for many
developing countries.”24
In fact, it was even mentioned in UN report notes when adopting the 1992 Climate Change
convention:
“The Convention recognizes the special circumstances and needs of developing
countries, and then structures the duties and obligations to be undertaken by the States
Parties accordingly.”
It is important for this justification to be aware not to mix the concept of developing states
needs with the justification relating to past environmental degradation from developed States.
This is due to the fact that over the next few decades, some of the developing States
contribution to the degradation of the environment will increase significantly, whilst their
socio-economic situation will remain poorer than that of developed States. 25 This may lead
one to think that these developing states should therefore forego some of their privileges
when it comes to differentiating responsibilities. However, when justifying CBDR due to
socio-economic reasons rather than environmental impact, these countries would still require
preferential treatment.26 In fact, the Climate Change Convention states that the South’s
greenhouse gas emissions “are still relatively low” and that their “share of global emissions”
must rise to achieve “their social and developmental needs”.27
The fourth, and most recent justification looks at the concept of a ‘global partnership’.
Evidence of this can be seen in the Rio Declaration, which pushes forward the concept of a
“Developing States” 52.
“Developing States” 52.
24
“Developing States” 52.
25
“Developing States”53.
26
“Developing States”53.
27
Third preambular paragraph, 1992 Climate Change Convention.
22
23
closer international cooperation. It could even be argued, that for international environmental
law to work on a global scale, that CBDR is fundamental. de Berdt Romilly even goes as far
as to state that differentiated responsibility is “necessary if sustainable development is to be
achieved”.28
The final justification for CBDR is that developing States may not want to commit to
environmental agreements that put certain limitations on them. Making these incentives less
strict for the South than the North might make the developing states more likely to commit.
The South may not see the benefit in joining these obligations as it can be costly and act as
another difficulty in economic development.29 As Jordan writes: “[i]n order to inveigle the
South into signing global conventions, the North is now realising that it may have to offer
sweeteners or side payments”30
Overall, both the North and South can benefit from differentiated obligations. By committing
to support different standards and international assistance, the North can help to create a
consensus on environmental problems to help the future of their own countries and the
world.31
For all of the justifications for CBDR, it is abundantly obvious that the role it plays in
international environmental regimes is very significant.32 And therefore, whilst CBDR may
currently be imperfect it is a mark of an international order that is beginning to see itself as a
community.
“Developing States” 56.
“Developing States” 56.
30
A. Jordan, The International Organisational Machinery for Sustainable Development (1993), 7.
31
“Developing States” 58.
32
“Developing States” 59.
28
29
Issues with Fairness and Justice
After considering the various justifications for CBDR this essay will now focus on why
fairness has been overlooked in IEL and how CBDR attempt to resolve unfairness in IEL.
Fairness, for the purpose of this essay will be defined as in Thomas Franck’s Fairness in
International Law and Institutions:
“[T]he fairness of international law, as of any other legal system, will be judged, first
by the degree to which the rules satisfy the participants’ expectations of justifiable
distribution of costs and benefits, and secondly by the extent to which the rules are
made and applied in accordance with what the participants perceive as right
process”33.
Kohday and Natarajan argue that fairness is the most challenged problem in IEL and that
debates surrounding the issue have only intensified over the past 40 years, essentially
bringing certain IEL regimes (such as climate change law) to a halt.34
There have been many attempts to solve issues relating to fairness in IEL, and this essay has
looked at differential treatment, technology transfers and financial assistance as examples of
this. However, despite this, it is still a commonly held view that fairness is not often
perceived as the most important part of IEL. Instead, effectiveness and enforcement are
considered to be more important. 35
One explanation for the concept of fairness being marginalised within IEL is that large areas
of IEL is considered to be soft law by many scholars.36 The fact that the law is soft means
that the question of legitimacy is less likely to be raised, as opposed to if the institutions were
of powerful hard law.37 On a similar note, IEL law often refers to catastrophes and looks
towards saving the earth for the human race. With this narrative of emergencies hanging
above it, it is easy to see how justice and fairness could be considered “unaffordable
luxuries”.38
33
Thomas Franck, Fairness in International Law and Institutions (Oxford University Press, 1997) 7.
Kishan Khoday, Usha Natarajan, “Fairness and international environmental law from below: social
movements and legal transformation in India” [2012] Leiden Journal of International Law 416.
35
“Against Fairness” 380.
36
“Against Fairness” 382.
37
“Against Fairness” 383.
38
“Against Fairness” 383.
34
In keeping with the sense of urgency portrayed by IEL, some academics argue that whilst
ethics are important when looking at the question of law theoretically, at some point IEL has
to create realistic laws that will achieve what is necessary.39 As Gillespie states:
“[T]he luxury of only pursuing the absolute, correct, philosophically pure and
defensible ethics is one which is simply not in accordance with the amount of work
that needs to be done, and the time available for the task. At this point in history, I am
of the belief that necessity should govern efforts in
international environmental protection.”40
Moving back to the main subject matter of this essay, however, this paper will now attempt to
analyse how CBDR work to solve the issues of justice and fairness within IEL.
Whilst CBDR were created to make IEL fairer, it would be wrong to say that the issues of
fairness have been solved by them. In fact, there are four main criticisms of this approach. 41
The first of these limitations of CBDR effect on fairness is that CBDR do not exist in all
fields of environmental law. Secondly, as mentioned before under Mickelson’s evaluation of
Principle 7 there are different perspectives of CBDR. This is the point about responsibility (to
make up for past injustices) or ability (wealthy nations should help the entire planet) of the
North. The third criticism is the sheer amount of qualifications that apply to the commitments
of CBDR – often supplementary protocols and agreements are necessary. The fourth and final
point is that CBDR have come under attack recently, despite originally being universally
accepted. Industrial states, particularly the major powers, do not want to be bound to reduce
emissions unless developing countries are similarly bound.
Another problem when it comes to fairness and IEL is that issues arising from fairness are
often ignored by scholars for already being solved.42 These scholars look at CBDR’s,
sustainable development and the acknowledgement of the North’s guilt as evidence of this.
One thing that can help the principle of fairness develop further is more engagement on the
local level. 43 Implementing IEL needs more than the co-operation on an interstate level, but
to see negotiations surrounding legal regimes and environmental principles at the local level.
“Against Fairness” 384.
A. Gillespie, ‘An Introduction to Ethical Considerations in International Environmental Law’, in M.
Fitzmaurice, D. Ong, and P. Merkouris (eds.), Research Handbook on International Environmental
Law (Edward Elgar Pub, 2011), 117.
41
“Against Fairness” 388.
42
“Against Fairness” 387.
39
40
Analysis
After looking at various themes and issues that concern CBDR, this paper shall now give a
more thorough analysis of each.
One of the issues surrounding CBDR and the concept of fairness is raised by Mickelson. This
relates to whether Principle 7 of the Rio Declaration gives the North a responsibility to pay
for the damage that they have done, or simply shows that they have the ability to do so. This
could have future legal implications as the developing countries (particularly emerging
economies) continue to develop. If CBDR are only necessary because the North has the
ability to have more responsibilities, as time continues, the gap between the responsibilities
should decrease as the gap between levels of development decreases. On the other hand, if
the Northern states have a responsibility to have higher responsibilities when it comes to
CBDR because of their past actions that have harmed the environment, then they should have
to pay until the damage they have caused has been evened out – irrespective of what the other
developing countries are doing.
This concept is furthered when one looks at the phrasing of Principle 7 of the Rio
Declaration. Despite the fact that overall creating CBDR is good for developing countries,
many considered that the wording of Principle 7 was not strict enough. There was no explicit
mention that the Northern states were legally responsible for the damage that they have done
(and are continuing to do to the planet). This would suggest that the North only have higher
responsibilities because they have the ability to pay, as opposed to because they should. The
result of this is that it will be much more difficult to impose liability on the industrial states.
Overall this comes down to the question of which is fairer – that damage is fully repaid, or
that everyone who can help does to their full extent – particularly as environmental problems
are global and affect everyone. These questions were studied more as this paper looked at the
various justifications of CBDR.
As mentioned previously, I looked at five main justifications for having differentiating
responsibilities in IEL. Whilst I have previously described them, here I shall analyse each
one.
Kishan Khoday, Usha Natarajan, “Fairness and international environmental law from below: social
movements and legal transformation in India” [2012] Leiden Journal of International Law 441.
43
The first justification I looked at centred on the North’s duty to take on more responsibilities
because it has, historically, been the one most responsible for the damage caused to the
environment. It was also mentioned that the North has been the one who has benefitted the
most from exploiting the environment and that is why it should be the one to pay. There are
however, several criticism of using this as a justification. It would be practically impossible
to look at how much damage that the North has caused to the environment at one point or
another and then quantify it into an amount of responsibility that they must take on to protect
the environment. With it being so difficult to calculate how much damage an action does to
the environment to begin with, there is no way that this could be used to create a legal
framework to make up for past damage. In this regard CBDR are not fair as if this was a
justification, it could not be efficiently calculated.
The second problem of using differentiation based around a country’s share of environmental
dilapidation is that industrial states have had a huge economic benefit from degrading and
exploiting the environment. Many developing states think that because of the benefit earlier
collected, Northern states should pay more money in compensation. Again, this paper argues
that it would be unfair to justify CBDR in this way as there is no way to calculate this.
The third and final issue is that, because the North has a larger responsibility as they have
contributed more to damaging the environment, the main duty for protecting the environment
should be down to the North. There are clearly many objections to this. Legally, for the issue
to be fair and attempt to follow the rule of law, all should be involved in the process and
responsibility. As previously mentioned, with developing countries having such a large land
mass and population they have a great capability to cause damage to the environment and
should therefore also be subject to responsibilities. Without that, CBDR could not be fair.
Overall, whilst initially seeming a very straight forward and obvious justification, the fact the
North has a duty to take greater responsibilities in CBDR because of past damage to the
environment has several issues when put into practice and it cannot be fair to have it as the
only justification.
The second of the two most common justifications for CBDR is that the North is considered
to be simply more capable of solving the relevant environmental issues due to a higher level
of development, particular in financial and technological areas. In many ways this can be
seen as a beneficial justification of CBDR – the work will be done more effectively than if all
of the states partook in the lowest responsibilities that each and every state was capable of
achieving. However, a negative side effect of this justification that could be used to negate
fairness, is the idea that as some states not only have less responsibilities, but are less capable
of taking over, their voices should be lost from the decision making process. This could
reduce the amount of legal strength of the developing states, which would not be fair.
The third justification given in this essay for CBDR looks at the special circumstances of the
South and takes these into account whilst making the relevant law, rather than the
capabilities. The difference between looking at the needs and responsibilities due to past
behaviour of states could have quite an impact. Whilst some states (particularly emerging
economies) may increase their contribution to the environmental damage, they will still be in
a weaker socio-economic position than developed countries. If one was to use the first
justification for CBDR then as soon as their contributions went up they would also have to
have more responsibilities, irrespective of their personal needs. If the third justification was
thus, then they would have less responsibilities, despite harming the environment more.
It is not clear cut as to whether this can considered fair or not. On the one hand, this
justification appears good in that it helps developing countries when they need it. On the
other, it is unfair to the developed countries which have to pay their due. It would appear for
the sake of the rule of law that it would be best to base it on the amount of harm, rather than
each countries individual needs.
The fourth, and most recent justification looks at the concept of a ‘global partnership’. As
suggested earlier in the essay, CBDR could even be considered fundamental for
environmental law to work on a global scale.
Furthering this the final justification for CBDR is that developing States may not want to
commit to environmental agreements that put certain limitations on them. If the limitations
are more relaxed for developing states, they may be more likely to commit – and committing
to something small is better than not committing at all.
Whilst the justifications for CBDR tell why there should be CBDR, it is also important to
consider whether it is just and fair. Something noted earlier in this essay is that fairness is not
considered important in IEL in comparison to other areas of law. The first idea considered in
this essay as to why fairness is not considered as important in IEL is that large areas of IEL is
soft law. Most law that is criticised for being illegitimate is hard law, or powerful institutions.
IEL, which is controversial by nature, is better to be soft so that it can fit more areas – but this
means its legitimacy is less likely to be questioned as it is more flexible. With this in mind,
one could argue that CBDR (and IEL in a larger framework) could be unfair, and as they are
less likely to be challenged, would get away with it.
Another reason given that fairness is not a priority in IEL is the sense of urgency and
emergencies that IEL is so closely connected to. It is quite easy to look at the fact that IEL is
here to save the planet for all states, and think that that is more important than fairness itself.
In this case the issue of fairness becomes controversial – it is a subjective opinion as to
whether it is fairer for each state to have differing responsibilities based on the justifications
mentioned above, or for the concept of saving the planet for everyone being fairer.
These two reasons as to why fairness is often ignored, or considered less important in IEL is
supplemented by the idea that many scholars look as the issue of fairness in IEL as already
being solved. This means that there is even less pressure to keep assuring fairness to
continue. One of the examples given for the solving of the concept of fairness in IEL is that
of CBDR.
However, even though CBDR were made to create a more fair system of IEL, they still leave
many problems which need to be addressed. I will now analyse the four main criticisms of
CBDRs.
The first major issue is that CBDR only exist in certain, and not all, areas of environmental
law. This is a problem as it means that whilst developing countries may have lower
responsibilities in some areas, they don’t in others – negating all the benefits of CBDR
previously mentioned.
The second criticism with CBDR has already been discussed in this analysis – and that is
Mickelson’s dilemma of whether the North has a higher level of responsibilities because it
has the “ability to pay or a responsibility to pay”.
The third limitation of CBDR is the complication that it takes to create them. On top of the
original documents that would be necessary to describe the responsibilities of each of the
countries, further protocols and agreements are often necessary. These supplementary
documents add complication to the matter and take up more time than it would if each state
had the same responsibilities.
The final problem is to do with the concept of CBDR generally. Whilst at first, under the Rio
declaration, the concept of CBDR was universally accepted it has recently come under attack.
This is particularly from the industrial powers who only want to be bound if the developing
countries are bound in the same way. This could become an issue for CBDR as it will need
the support of all participating states to be successful.
To conclude – there are many benefits of CBDR. As can be seen from the five justifications,
the use of CBDR makes the system of IEL – typically an area of law reserved for developed
States – more accessible for developing countries whose priorities may focus more on
development. However, the system is far from perfect as justifications overlap and a lot is left
unclear. For CBDR to become more effective, and fair, these issues need to be worked out.
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