The Principle of Common but Differentiated Responsibilities in Public International Law

JORGE ANDRÉS VILLA DELSORDO¹

SUMMARY: I. Introduction and concept. II. Intergenerational equity. III. Legal framework and historical development. IV. Legal value. V. Conclusion.

Abstract. The Principle of Common but Differentiated Responsibilities is a developing norm in the field of environmental law in Public International Law. Without this principle’s inclusion in inter-State relations, a real application of the environmental measures intended to safeguard our planet and preserve it for future generations is close to impossible. This principle is in itself the application of environmental measures considering specific social and economic national circumstances in full compliance with sovereign equality and intergenerational equity. It is headed towards the realization of an actual sustainable development for all States, not just those who have achieved development. The following article is a detailed analysis of the principle’s legal standing, historical background and current applicability in Public International Law.

Keywords: Environmental law principles, intergenerational equity principle, sustainable development, public international law.

Resumen. El principio de responsabilidades comunes pero diferenciadas es una norma en desarrollo en el campo del derecho ambiental en el Derecho Internacional Público. Sin este principio y su inclusión en las relaciones interestatales, una aplicación real de las medidas ambientales encaminadas a la protección del planeta y su preservación para generaciones futuras es prácticamente imposible. Este principio es en sí la aplicación de medidas ambientales tomando en consideración las circunstancias nacionales económicas y sociales, cumpliendo con los principios de igualdad soberana y equidad intergeneracional. Está encaminado a la realización de un desarrollo sustentable real para todos los Estados, y no sólo aquellos que han logrado desarrollarse. El siguiente artículo es un análisis detallado del status legal del principio, su desarrollo histórico y su aplicabilidad actual en el Derecho Internacional Público.

Palabras clave: Principios de Derecho ambiental, principio de equidad intergeneracional, desarrollo sustentable, Derecho internacional público.

I ] Introduction and concept

1. What is a developing State?

The concept of developing state arose after the end of the Second World War. There is in fact no single indicator to identify developing countries. There is a wide array of factors that are taken into consideration when development is measured, such as economic, social, political and educational factors.² The most accepted parameter for measuring a State’s level of development is its Gross National Income (GNI) per Capita.³ For the current 2017 fiscal year, low-income economies are defined as those with a GNI per capita, calculated using the World Bank Atlas method, of $1,025 or less in 2015; lower middle-income economies are those with a GNI per capita between $1,026 and $4,035; upper middle-income economies are those with a GNI per capita between $4,036 and $12,475; high-income economies are those with a GNI per capita of $12,476 or more.⁴ Commonly the World Bank refers to low-income and middle-income countries as developing countries.⁵

2. Concept of the Principle of Common but Differentiated Responsibilities

The Charter of the United Nations contains one of the most important principles in its Purposes and Principles section: Sovereign Equality. It states that the organization is based on this principle; hence it is applicable to all its members. This principle entails that formally all States are equal and their inter-state relations are governed by the aforementioned principle. This means that de iure all States are assumed to have the same rights and duties, regardless of their socio-economic characteristics.⁶

However, the Principle of Common but Differentiated Responsibilities states, in essence, that the needs of developing countries, particularly those least developed shall be given special priority. It is in itself an application of intragenerational equity amongst members of a generation, to the interstate level. Now as to the concept, leading author in the subject, Ellen Hey states that: The concept of common but differentiated responsibilities in international environmental law entails that while pursuing a common goal, States take on different obligations, depending on their socio-economic situation and their historical contribution to the environmental problem at stake.⁷ So, the application of this principle is key in order for a real fulfillment of a State’s obligation, for it considers all factors involved. States struggling to keep up with social and economic duties towards their people cannot be expected to comply in the same manner as their developed counterparts.

II ] Intergenerational equity

1. What is intergenerational equity?

When dealing with the concept of intergenerational equity, Edith Brown Weiss, a leading publicist in the matter states that: The principle of intergenerational equity states that every generation holds the Earth in common with members of the present generation and with other generations, past and future.⁸ This particular principle is the essence of sustainable development, for it is included in every legal instrument on the international level that includes the concept of sustainable development.

This principle has its origins in diverse religious traditions, such as the Judeo-Christian and Islamic traditions. It has been developed in diverse legal systems in Civil Law and Common Law traditions.⁹

2. Intragenerational Equity

The lack of equity amongst the peoples of today’s countries is undoubted. People living in countries with massive human and material resources like the United States cannot be considered to be in the same economic situations as individuals living in countries like Samoa or Belize. Hence, since they are not in the same socio-economic circumstances, these countries cannot be expected to fulfill their intergenerational equity obligations in the same manner as a developed State. Edith Brown Weiss further describes it and its relationship:

(…) equity problems are addressed in the concept of intragenerational equity, ie equity among peoples today. The quest for intergenerational equity requires that intragenerational equity issues be addressed. In practice, the two kinds of equity are joined, because poor communities cannot be expected to fulfill intergenerational obligations if they are not able to meet basic needs today.¹⁰

As can be appreciated above, in order to fully analyze and establish the scope of application for a State’s intergenerational equity obligations intragenerational equity must be taken into consideration.

3. Sustainable Development

Sustainable development is defined as a development that meets the needs of the present without compromising the ability of future generations to meet their own needs.¹¹ It has been included in a number of international legal instruments and is one of the most relevant items, if not the most in the international community’s agenda. Sustainable development is the embodiment of the intergenerational equity obligations the States that make up the international community have.

Its relation with the Principle of Common but Differentiated Responsibilities is in fact that States do have to develop in a sustainable way, but a State cannot be forced to comply with that which it is incapable of doing. The obligation and responsibility to develop in a sustainable way, respecting intergenerational equity exists, there is no doubt. However a developing State can only comply with the aforementioned in the manner in which its social and economic circumstances allow it to do so.

III ] Legal framework and historical development

The Principle of Common but Differentiated Responsibilities has been included in a number of legal instruments throughout history. The most important of these, being the following:

1. Stockholm Declaration

The Declaration of the United Nations Conference on the Human Environment, which took place on June 16, 1972 in Stockholm, Sweden, was the first of many legal instruments to come, which are meant to safeguard the environment.

In its Principle 12 it states that: Resources should be made available to preserve and improve the environment, taking into account the circumstances and particular requirements of developing countries (…).¹² It is clear evidence that developing countries, given their specific situation, need to be treated in a differentiated manner regarding their common environmental duties.

It even goes a little further in specifying how developing countries exist under a different set of circumstances and how those situations have to be considered: (…) it will be essential in all cases to consider the systems of values prevailing in each country, and the extent of 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.¹³

2. Convention on Biological Diversity

The Convention on Biological Diversity contains a reference to the content of this principle in its article 20 (4), in which it states that: The extent to which developing country Parties will effectively implement their commitments under this Convention (…) will take fully into account the fact that economic and social development and eradication of poverty are the first and overriding priorities of the developing country Parties.¹⁴ This convention was signed in 1992 and it currently has 196 State Party. It is the first treaty or convention to contain a reference to developing countries and their special needs. The most important aspect of this convention with regards to the Principle of Common but Differentiated Responsibilities is that it considers the social and economic needs of developing States to have an overriding importance.

3. Rio Declaration

The Rio Declaration on Environment and Development, held in Rio de Janeiro, Brazil on June 14, 1992 has a direct link with the previously mentioned Stockholm Declaration and has as its main purpose the safeguarding and protection of the environment.

It is the first international legal instrument that actually mentions the Principle by name. On its Principle 7 it very clearly states the following: In view of the different contributions to global environmental degradation, States have Common but differentiated responsibilities.¹⁵ It took the concept of Common but differentiated responsibilities and for the first time stated it in a legal instrument, acknowledging its existence.

The Declaration also includes an additional reference to the special situation of developing countries in its Principle 6. In essence, the Rio Declaration is a step further in the path to the ultimate recognition of the principle.

4. Agenda 2030

One of the most recent developments in the field of environmental protection on the international level is the General Assembly Resolution A/RES/70/1, adopted by the aforementioned United Nations organ on September 25, 2015. It is otherwise known as the Agenda 2030: Transforming our world: the 2030 Agenda for Sustainable Development. It sets forth 17 goals the international community undertakes in order to achieve sustainable development as a whole. Such goals include gender equality, the ending of poverty, hunger, the reduction of inequality amongst many others.

In the Declaration section, in the Our shared principles and commitments section, it contains a specific reference to the Rio Declaration and the principles therein contained and it makes special emphasis on the Principle of Common but Differentiated Responsibilities. It states the following: 12. We reaffirm all the principles of the Rio Declaration on Environment and Development, including, inter alia, the Principle of Common but Differentiated Responsibilities, as set out in principle 7 thereof.¹⁶ This recent resolution is a clear example of the international community’s will to commit to this principle.

5. Paris Agreement

Finally, the most recent and binding legal instrument that mentions and contains the Principle of Common but Differentiated Responsibilities is the Paris Agreement. It was, as its name provides, signed in Paris, France on 2015, entering into force on November 4, 2016. It currently has 197 States Party, out of which 139 have already ratified it.

The convention makes two specific and clear references to the Principle at hand. It begins by stating it in the preamble of the convention as follows: In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.¹⁷ Furthermore, in its article 2, it states that: 2. This Agreement will be implemented to reflect equity and the Principle of Common but Differentiated Responsibilities and respective capabilities, in the light of different national circumstances¹⁸ In both these references, their wording recognizes the importance of the different specific circumstances under which a State is, for these will dictate the State’s degree or manner of compliance. Basically, the entirety of the agreement must be interpreted and analyzed in light of this very important principle.

6. The International Court of Justice and the Principle

The Court has never actually employed the principle in one of its resolutions, however in its Judgment on the merits of the Case Concerning Military and Paramilitary Activities in and against Nicaragua, the ICJ considered the economic circumstances and the resources at a State’s disposal in order to demand such States compliance with an international obligation. It did so, when it compared the United States and Nicaragua and their respective resources.¹⁹ Although it was not done regarding environmental obligations it did entail international legal obligations.

IV ] Legal value

The Principle of Common but Differentiated Responsibilities, according to leading publicist Ellen Hey, clearly has normative implications, i.e. implying commitments, possibly duties, on the part of developed States vis-à-vis developing States.²⁰

As the field of environmental law is a developing one, this principle could even be considered as a developing norm in the aforementioned field. The International Court of Justice has recognized the importance of developing norms in the 1997 Case Concerning the Gabcikovo-Nagymaros Project:

Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done with- out consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.²¹

This judgment very clearly reflects the importance of considering new standards in the field of environmental law. Environmental protection is ever evolving and the standards and norms that accompany this development should be taken into consideration. The Principle of Common but Differentiated Responsibilities has been developed over time in several legal instruments as was detailed above, therefore, the principle should be taken into consideration and valued as essential for a real application of environmental protection.

V ] Conclusion

In conclusion, the Principle of Common but Differentiated Responsibilities is essential for a real application of the legal instruments that regulate the environment and its protection. Without this principle, these instruments and treaties would remain an ideal and not a real regulation; protection of the environment would be something desired and not a realistic concept.

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