It should not be assumed that international law always applies equally to all states. In practice, distinctions have been drawn most oft en between developed and develop-ing states. Usually this entails acknowledgdevelop-ing contextual diff erences, most notably the diff ering capabilities of states; more rarely the normative treatment of developed and developing states is expressly diff erentiated. In international environmental law the evolution of ‘common but diff erentiated responsibility’ can best be observed in the Ozone, Climate Change and Biological Diversity Conventions.160 Th e commit-ments undertaken in these treaties are dependent on further elaboration and agree-ment in protocols such as those concluded at Montreal in 1987 and Kyoto in 1997. Th e very widespread ratifi cation of all three treaties, and the terms on which subsequent negotiations have been conducted, including the Kyoto Protocol, point to near uni-versal acceptance of the principle of common but diff erentiated responsibility for glo-bal environmental change, even if diff erences remain on its implications. Th e broad terms of that responsibility diff er signifi cantly from the older customary law regard-ing transboundary harm found in Principle 2. Principle 7 elaborates ‘common but diff erentiated’ responsibility in the following terms:
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 diff erent contributions to glo-bal environmental degradation States have common but diff erentiated responsibilities. Th e developed countries acknowledge the responsibility that they bear in the international pur-suit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and fi nancial resources they command.161
156 See 1992 Convention on Climate Change, Article 7(2)(e) and Article 10; infra, Ch 6.
157 See generally infra, Ch 4. It is also possible that the Commission on Sustainable Development may in future acquire such a role: see supra section 2(3).
158 Infra, Ch 4, section 3(3). 159 See infra, section 5 and Kiss, 175 Recueil des Cours (1985) 99.
160 Th e most comprehensive treatment is Rajamani, Diff erential Treatment in International Environmental Law (Oxford, 2006). See also Cullet, 10 EJIL (1999) 549; French, 49 ICLQ (2000) 35; various authors, 96 Proc ASIL (2002) 358–68; Atapattu, Emerging Principles of IEL, Ch 5.
161 See also Convention on Climate Change, Article 3(1) and 1987 Protocol on Substances that Deplete the Ozone Layer, Article 5.
Th is is principally an obligation to cooperate in developing the law, but it has signifi -cant normative value in setting parameters within which responsibilities are to be allocated between developed and developing states in the subsequent negotiation of further implementing agreements or in the interpretation of existing agreements.162 Common but diff erentiated responsibility can thus be seen to defi ne an explicit equit-able balance between developed and developing states in at least two senses: it allows for diff erent standards for developing states and it makes their performance depend-ent on the provision of solidarity assistance by developed states.
(a) Diff erentiated responsibility
Although responsibility is common to all states, developed and developing alike, higher standards of conduct are explicitly set for developed states on the grounds that they have both contributed most to causing problems such as ozone depletion and cli-mate change and that they also possess greater capacity to respond than is generally available to developing states. Th e diff erentiation of standards of conduct between developed and developing states is most apparent in Article 4 of the Climate Change Convention and Article 5 of the Ozone Protocol (see Chapter 6). Under the former all parties are required to undertake certain measures, mainly concerned with cooper-ation and informcooper-ation exchange, while only developed countries and others listed in an annex are bound by any commitments to takes measures to deal with greenhouse gases. Th e same broad distinction is maintained in the Kyoto Protocol. Under Article 5 of the Ozone Protocol all parties are bound by the same commitments, but develop-ing country parties are given a longer timescale within which to phase out production and consumption of ozone depleting substances. In some cases these states may even increase production and consumption within that period.
Although the phraseology of Principle 7 is not repeated in the Biological Diversity Convention or in the 1982 UNCLOS, nor is there any explicit diff erentiation in these treaties between the responsibilities of developed and developing states, in practice the latter do not bear the same burdens and contextual diff erences are recognized.
Th us there are frequent references to what is ‘possible and appropriate’ throughout the Biological Diversity Convention, and Article 6 allows account to be taken of the ‘par-ticular conditions and capabilities’ of each party.163 Article 194(2) of the 1982 UNCLOS uses similar terminology, whose practical eff ect is to require less from developing states in protecting the marine environment than from developed states.164 Th e equitable diff erentiation of responsibilities is evidently less strong in these two treaties than in those dealing with climate change and ozone depletion, but it is still apparent, and all four agreements share, in a unique way, the element of solidarity and conditionality.
162 On the role of principles in structuring the negotiation of further agreements see supra Ch 1. On the infl uence of the Principle 7 in negotiation of the Kyoto Protocol see infra, Ch 6.
163 Infra, Ch 11 and see Boyle, in Bowman and Redgwell, International Law and the Conservation of Biological Diversity, 44–7.
164 Infra, Chs 7, 8.
(b) Solidarity and conditionality
In addition to setting higher standards for developed states, Principle 7 of the Rio Declaration also entails obligations of solidarity assistance to developing states in the form of access to new and additional funds and the transfer of environmentally sound technologies or substitutes. Provisions on all of these matters are found in the Climate Change, Biological Diversity and Ozone Conventions and Protocol, and to a more limited extent in the 1982 UNCLOS.165 Th eir purpose is to help developing countries implement their commitments by meeting the incremental costs and building up their capacity to do so. Trust funds and the Global Environment Facility166 provide access to funding for these purposes and for projects likely to result in global benefi ts, including protection of the marine environment.
Th e extent of this commitment to solidarity should not be exaggerated. Not sur-prisingly, the developed states which would have to provide the necessary resources under these treaties have been carefully ambiguous about the terms of any commit-ments they have made. For example, under the Biological Diversity Convention the undertaking to provide or facilitate access to technology is in most cases depend-ent on mutual agreemdepend-ent of terms and conditions,167 making it uncertain how far any real obligations or rights are created. Nor is the provision of fi nancial resources open-ended. Th e incremental costs to be covered under Article 21 must also be agreed between the developing states in question and the fi nancial mechanism created by the convention. Th e view of many developed states is that contributions to this fund are in eff ect voluntary and determined by each party.168 Similar comments can be made about technology transfer and funding provisions of the Montreal Protocol and Climate Change Convention.169 It is doubtful whether at best these represent more than very weak commitments on the part of developed states.
Developing states have, however, found a much better solution to the problem of fi nancial assistance and technology-transfer which obviates the need to express their expectations in terms of strong obligations or solidarity rights. A common feature of the Montreal Protocol, the Biological Diversity Convention and the Climate Change Convention is that the obligations of developing states to comply with these conven-tions ‘will depend upon’ the eff ective implementation of their provisions on fi nancial assistance and transfer of technology by developed states.170 While this might simply
165 Convention on Climate Change, Articles 4(1)(c), 4(3), 4(5), 11; Convention on Biological Diversity, Articles 16, 20, 21; 1987 Protocol on Substances that Deplete the Ozone Layer, Articles 10 and 10A; 1982 UNCLOS, Articles 202–3. See Rajamani, Diff erential Treatment, 108–18. On the role of funding in treaty compliance see Cameron, Werksman and Roderick (eds), Improving Compliance with International Environmental Law (London, 1996) Ch 12; Burhenne-Guilmin and Casey-Lefk owitz, 3 YbIEL (1992) 55–6.
166 Supra Ch 2, section 4(4). 167 Article 16.
168 Th e United Kingdom and nineteen other states made declarations on signature asserting that the amount, nature, frequency and size of contributions under Articles 20 and 21 are to be determined by indi-vidual states, not by the Conference of the Parties. See Boyle in Bowman and Redgwell, International Law and the Conservation of Biological Diversity, 46–7.
169 See infra, Ch 6.
170 Convention on Biological Diversity, Article 20(4); Convention on Climate Change, Article 4(7);
Protocol on Substances that Deplete the Ozone Layer, Article 10.
be a statement of the obvious, it could also be read as making implementation of these conventions by developing countries conditional on receipt of assistance from devel-oped states. Agenda 21 makes the same point with regard to the marine environment.
It provides that implementation of its provisions by developing countries:
shall be commensurate with their technological and fi nancial capacities and priorities in allocating resources for development needs and ultimately depends on technology transfer and fi nancial resources required and made available to them.171
Th e eff ect of making obligations conditional in this way is to give developing states the means to put pressure on developed states. From this perspective it becomes irrelevant whether developed states have a legal duty to provide assistance: if they want develop-ing states to participate actively in securdevelop-ing the goals of each agreement they must honour the expectation that the necessary resources will be provided.172 It is in this sense that solidarity is a key element of the common but diff erentiated responsibility of the parties.
(c) An assessment of Principle 7
Principle 7 of the Rio Declaration has to be viewed in the context of negotiated global regulatory regimes, rather than as a principle of customary international law, but it is nonetheless legally signifi cant. It may not provide a basis for interstate claims for glo-bal environmental damage,173 but it does provide an equitable basis for cooperation between developed and developing states on which the latter are entitled to rely in the negotiation of new law to address global environmental concerns. In this sense it is far from being merely soft law, but can be regarded as a ‘framework principle’, as we saw in Chapter 1.
Acceptance of the principle of common but diff erentiated responsibility was one of the conditions for ensuring the widest possible participation by developing countries in the Rio instruments. It is this consideration which provides the main justifi -cation for diff erentiation. Consensus on common higher standards would have been impossible to achieve; consensus based on common lower standards would, at least in the case of climate change, have meant failure to achieve any notable advance on the status quo. Principle 7 is undoubtedly preferable to either of these outcomes. At the same time there is a loss of legal uniformity, which may entail higher costs and ultim-ately weaken the legitimacy and credibility of global environmental regimes.174 Some of these considerations underlay the US insistence at Kyoto, and subsequently, that
171 Agenda 21, Ch 17.2.
172 In 1995 the G77 developing countries expressed concern that ‘eff ective implementation of Agenda 21 on developing countries is severely jeopardized by the insuffi cient transfer of fi nancial and technological resources from developed to developing countries’, 26 EPL (1996) 59.
173 A point stressed by the United States at Rio and Johannesburg: see UN Doc A/Conf 151/26, vol iv (1992) 20 and UN Doc A/Conf 199/20 (2002) 146.
174 Handl, 1 YbIEL (1990) 8–10, but cf Sand, Lessons Learned in Global Environmental Governance, (Washington, 1990) who points out that asymmetrical standard-setting may be the best way of avoiding consensus on the lowest acceptable standards.
developing states should accept greater responsibility for averting climate change in future negotiations.
Th e idea of diff erentiated responsibility is not entirely new in international envir-onmental law. Th e obligation to use due diligence in mitigating and controlling trans-boundary environmental risks already takes account of the diff ering capabilities of individual states,175 although to a more limited extent and without the elements of con-ditionality and solidarity found in Principle 7 and the Climate and Ozone Conventions.
But it should not be assumed that diff erentiated responsibility applies universally to all environmental risks. On the contrary, it fi nds no place in regulatory treaties dealing with ultrahazardous activities, such as nuclear safety176 and pollution from ships,177 or in the regulation of dumping at sea178 and trade in endangered species,179 or in the con-duct of activities in Antarctica, outer space, or on the deep seabed.180 In all these cases observance of common international standards is essential for eff ective international regulation. It is also evident that in the Convention on Biological Diversity the element of common but diff erentiated responsibility is more attenuated than in other global conventions. Moreover it would clearly be wrong to suggest that the obligations of developing states in cases of transboundary risk are in any sense conditional on the provision of technical and fi nancial assistance by their neighbours. Any such view would not only be subversive of existing law on transboundary risks181 but would be detrimental to the interests of developing states themselves. Common but diff erenti-ated responsibility is based on the perception that global environmental risks, such as climate change, have mainly been caused by and should therefore be tackled primarily by developed states. It was never intended to be a justifi cation for allowing developing states to dump pollution on each other.