Equitable But Ineffective: How the Principle of Common But Differentiated Responsibilities Hobbles the Global Fight Against Climate Change

AuthorMary J. Bortscheller
PositionJ.D. Candidate, May 2010, at American University Washington College of Law
Pages49-53
49 SUSTAINABLE DEVELOPMENT LAW & POLICY
eQuitable but ineffective: how the
pRinciple of common but DiffeRentiateD
ReSponSibilitieS hobbleS the global fight
againSt climate change
by Mary J. Bortscheller*
* Mary J. Bortscheller is a J.D. Candidate, May 2010, at American University
Washington College of Law.
INTRODUCTION
Scientists now predict that despite global efforts to reduce
greenhouse gas emissions, climate change effects li ke
long-term droughts and signif‌icant sea-level rise are inevi-
table.1 Consequently, the climate change crisis demands a com-
prehensive international response, with meaningful participation
by all the major greenhouse gas (“GHG”) emitters.2 The current
climate regime embodied in th e Kyoto Protocol distinguishes
between developed and developing countries in a way that main-
tains an invidious inertia in the international f‌ight against climate
change.
China is a major GHG emitter that does not have any obliga-
tions to reduce emissions under the Kyoto Protocol, the current
binding international climate change regime.3 The international
community took a fresh look at the Protocol at the 15th Confer-
ence of the Parties (“COP”) in Copenhagen in December 2009. A
critical question at that time was whether China would agree to
reduce its GHG emissions; China’s position impacts the global
community’s ability to combat climate change because other
major GHG emitters (most notably the United States) have used
China’s lack of binding commitments to justify their non-partici-
pation in the Kyoto Protocol.4 Positive signs were evident during
and in the wake of the Copenhagen COP, however, when China
played a key role in drafting the Copenhagen Accord, and fur-
ther acknowledged the need for all countries to take action to f‌ight
climate change.5 Notably, China agreed to international verif‌ica-
tion of domestic mitigation measures, a signif‌icant step towards
increased transparency in the regime.6
The f‌ight against climate change is necessarily a global one,
and China’s full participation in the United Nations’ Framework
Convention on Climate Change (“UNFCCC”) is especially cru-
cial in the short term.7 And although the Copenhagen COP did
not produce a binding document, future COPs will. In so doing,
the international community must reassess the application of the
principle of common but differentiated responsibilities (“CDR”),
which divides countries into two primary categories—developing
and developed—and determines obligations accordingly.8
This article examines China’s unique situation within the
UNFCCC and argues that the current interpretation of CDR is
politically and practically f‌lawed because it leaves out emerging
economies that are major GHG emitters. The principle of CDR, as
currently applied, does not distinguish among developing nations
in a way that recognizes th e critical importance of emergi ng
economies like China.9 China and other large emerging econo-
mies, no longer f‌it comfortably in the CDR’s existing develop-
ing country category.10 A third category is therefore necessary to
encompass emerging economies like China. The international cli-
mate regime’s failure to actively engage China presents a problem
for the entire international community.11 Indeed, as an emerging
economy and a major GHG emitter, and as an international actor
whose participation in the climate regime impacts other major
emitters’ compliance, it is essential that China actively partici-
pates in the successor agreement to the Kyoto Protocol.12 Current
incentives in the Protocol are not suff‌icient to persuade China to
accept emission reduction commitments; consequently, the next
protocol requires a combination of extra-legal incentives to con-
vince China to take a more active role.13 Further, while China
has made statements about working together within the UNFCCC
structure, the United States and other developed countries have
not yet succeeded in persuading China to accept binding commit-
ments in a climate change regime.14
COMMON BUT DIFFERENTIATED RESPONSIBILITIES
In recognition of the daunting environmental problems it
faces, China is shifting toward increased domestic environmental
responsibility, making resource conservation and environmental-
ism major policy goals.15 China’s commitment to the interna-
tional f‌ight against climate change, however, is not on par with
other major emitters like the United States and Europe because it
does not involve any GHG emissions reductions.16 This situation
results from the application of CDR in the international climate
change regime.17 The presence of the principle of CDR, in turn,
is the result of a complex negotiation process between developing
and developed countries.
During the UNFCCC negotiations in 1992, both developed
and developing countries had co ncerns about who would be
the f‌irst to reduce GHG emissions, and who would f‌inance the
associated costs.18 De veloped c ountries w anted an inclusive
international agreement for maximum effect and legitimacy.19
Developing countries hesitated to commit themselves to reduc-
tion targets when they had historically not contributed to global
50WINTER 2010
greenhouse gas stocks, nor benef‌ited from such emissions in the
form of elevated standards of living.20 Thus, in order to reach
a comprehensive international agreem ent that brought all the
necessary players to the table, the f‌irst COP used the principle
of CDR to strike a political compromise with continuing legal
implications.21
The principle makes developed countries the f‌irst actors in
reducing emissions, and allows developing countries to follow
over time. The notion of common but differentiated responsibil-
ities is not new: it ref‌lects general principles of equity in inter-
national law.22 The principle was present in nascent form in the
1987 Montreal Protocol, which acknowledged the “special situ-
ation” of developing countries by allowing them to delay their
compliance with Protocol control measures for ten years.23 The
UNFCCC has attempted to duplicate this successful model in a
climate change context.24
cDR DiStinguiSheS between DevelopeD anD
Developing countRieS
The principle of CDR now embodied in the UNFCCC means
that two factors determine a nation’s obligations concerning cli-
mate change . The f‌irst factor is a particular nation’s contribu-
tion to climate change through GHG emissions; the second is its
economic and technological capacity to reduce emissions.25 The
CDR is primarily backward-looking, as it focuses on past contri-
butions to existing stocks of emissions and lays out responsibili-
ties intended to have remedial effects.26
Based upon the two cen tral cons iderations of CDR, the
UNFCCC distinguishes between member countries, with the
primary division occurring between developed and developing
country parties.27 Though the developed/developing paradigm
dominates in the Convention, there is also intra-group differentia-
tion between types of developed countries and types of develop-
ing countries.28
In practice, the principle of CDR means that developed coun-
tries are subject to binding commitments to cut GHG emissions.29
Further, certain developed countries are responsible for money
and technology transfer to aid developing countries in adapting
to and mitigating the effects of climate change.30 In contrast, the
UNFCCC does not require developing countries to reduce emis-
sions or contribute funding, because of their minor contribution to
existing GHG stocks and their reduced economic and technologi-
cal capacity.31 Moreover, the Convention pays special attention
to the plight of so-called “least developed countries,” as well as
countries that will be especially harmed by climate change.32
Country designation as Annex I or II is self-imposed.33 In
other words, the Conference of the Parties to the UNFCCC is not
vested with the power to determine which countries are devel-
oped and which are developing. Rather, any country desiring to
be included in Annex I or II “may” notify the Secretary-General
of the United Nations that it “intends to be bound” by developed
country commitments.34 There are no further provisions in the
UNFCCC or the Kyoto Protocol that elaborate on the process
of categorizing member nations.35 This makes the international
law-making process on climate ch ange especia lly vulnerabl e
to political horsetrading, as entering into binding agreements is
entirely voluntary for countries designated under the UNFCCC as
“developing.”
As the f‌irst measure arising from the UNFCCC with bind-
ing commitments carrying the force of law, the Kyoto Protocol
set specif‌ic emission reduction commitments for each developed
country party.36 To date, 183 nations and the European Com-
munity have ratif‌ied the instrument; the United States is the only
developed country party that has not.37 Developing cou ntries
have no binding commitments under the Kyoto Protocol but do
agree to monitor emissions, promote sustainable development,
and cooperate with the Conference of the Parties in mitigating and
adapting to the impacts of climate change.38 China is designated
a developing country party, and therefore did not commit itself to
any emissions targets when it signed and ratif‌ied the UNFCCC
and subsequent Kyoto Protocol.39 The highly-anticipated Decem-
ber 2009 Copenhagen COP did not produce a binding succes-
sor-instrument to the Kyoto Protocol, but instead resulted in the
Copenhagen Accord.40
chinaS uniQue Situation in the inteRnational
climate change Regime
CDR guides China’s off‌icial position with respect to the inter-
national climate change regime.41 As a self-designated develop-
ing country party, China’s current obligations under the Kyoto
Protocol extend only to soft commitments like GHG monitoring
and information-sharing, promoting sustainable development, and
enhancing carbon-absorbing resources, like forests.42 A key con-
tributor to the drafting of the Copenhagen Accord in December
2009 at the Copenhagen COP, China nonetheless remains among
the group of countries which is not legally obligated to reduce
GHG emissions.43
One of China’s chief strategies for ad dressing global cli-
mate change is to “uphold” the principle of CDR, which currently
allows China to avoid emissions reduction commitments.44 In
support of its position, China advances several arguments, noting
the nation’s relative poverty, its relatively low per capita emis-
sions, and low level of responsibility for the existing stock of
GHG emissions.45 Moreover, China argues that it would not be
fair to deprive a developing nation of the right to emit freely in the
course of its development, as developed countries have already
done.46
Although China underscores its low development status,
recent history shows that the country is unique among developing
nations, as it has rapidly gained stature in the international com-
munity.47 Starting in 1979 with its Reform and Opening Policy,
China has implemented an ambitious plan to modernize the once-
marginalized nation.48 An illustration of China’s remarkable suc-
cess at modernization is the 2008 Beijing Olympic Games, which
engaged the world with China in an unprecedented way. The last
decade has made it clear that China is an increasingly dominant
player on the global stage.49
Even as China gains prominence in the international commu-
nity, its GHG emissions and air pollution problems are mount-
ing; stark statistics detailing the situation abound.50 Perhaps most
51 SUSTAINABLE DEVELOPMENT LAW & POLICY
importantly, China now leads the world in annual GHG emis-
sions.51 Further, a recent World Bank report estimated that air
pollution causes about 750,000 deaths per year in China.52 The
World Bank also reported that the nation is home to sixteen of
the world’s twenty most-polluted cities.53 Atmospheric brown
clouds, produced by automobile emissions and coal-f‌ired power
plants, have reduced sunlight and interfered with crop yields in
several cities.54
In lig ht of these facts, the Chinese gover nment has giv en
more attention to environmental issues.55 Because environmen-
tal degradation has emerged as an increasingly popular cause of
citizen activism, China’s leadership will not be able to ignore the
issue in the future.56 With an eye on its own continued legitimacy,
the Chinese Communist Party (“CCP”) is concerned with the deli-
cate balancing of continued economic growth against the domes-
tic and international imperatives for environmental protection.57
A SOUND PRINCIPLE, WITH FLAWED APPLICATION
In its stated terms, CDR is sound and equitable; it has wide-
spread acceptance in the international community, and will con-
tinue to play a central role in climate negotiations.58 Although
some scholars f‌ind the principle objectionable, their opposition
arises out of a different interpretation of what is equitable for
developed and developing country parties.59 Critics argue that it
is too diff‌icult to predict the differentiated needs of developing
countries in light of scientif‌ic uncertainty about the specif‌ics of
adverse climate change impacts.60 While it is true that some sci-
entif‌ic uncertainty remains about the impacts of climate change,
widespread agreement exists that developing countries will bear
a disproportionate amount of damages from climate change.61
Therefore, the principle of CDR correctly seeks to bri dge the
divide.
Detractors also f‌ind it questionable that multi-lateral envi-
ronmental agreements should hold developed countries account-
able for their historic emissions stocks, f‌inding it unjust to ask
modern-day citizens to make amends for pollution emitted gen-
erations ago.62 This argument fails to acknowledge the benef‌its
that current generations have derived and continue to derive from
living in a developed country. For example, a high standard of
living, solid infrastructure, and economic strength are all after-
effects of development and industrialization achieved through
signif‌icant pollution.63 Because citizens of developed countries
currently enjoy the fruits of past GHG emissions, it is only fair
to require those nations to bear a greater burden in solving the
climate change problem.
the pRinciple of cDR in application iS politically
ineffective
Notwithstanding the soundness of CDR, the principle is
problematic because it has created a paradigm that, if it per-
sists, will not allow the nations of the world to effectively com-
bat global warming.64 The current interpretation of CDR in the
Kyoto Protocol is politically ineffective because its exception
of emerging economy, major-emitter countries like China has a
chilling effect on global climate change negotiations.65 Because
of its status as the leading GHG emitter and its rising prominence
in the international community, Chi na’s participation is espe-
cially crucial to a multilateral climate change agreement. Within
the United States, the fact that the Kyoto Protocol did not include
obligations for China was advanced by President Bush and promi-
nent congressional leaders as a reason for refusing to ratify the
document.66 This is a direct result of the vague construction of the
principle of CDR in the current climate regime.
For example, the regime does not suff‌iciently distinguish
between developing countries like China and Botswana.67 The
closest it comes to distinguishing between developing country
parties is to emphasize the need to help developing countries
that are “particularly vulnerable” to the adverse impacts of cli-
mate change.68 Accordingly, China frames its policy statements
on climate change to f‌it this characterization; indeed, a recent
government White Paper echoes the UNFCCC’s provision dis-
tinguishing the e specially susceptible developing countries.69
By describing itself as a country that is “particularly vulnerable”
to climate change, China seeks to f‌it its increasingly square real-
ity into the round hole of the developed country category of the
UNFCCC.70 Unfortunately, the language of the UNFCCC is not
suff‌iciently specif‌ic to prevent such subtle mischaracterizations,
which then lead to an undesirable result.71
China’s willingness to accept increased responsibility under a
more nuanced interpretation of the CDR could contribute signif‌i-
cantly to the success of a post-Kyoto regime.72 On the other hand,
without at le ast some corresponding commitments by China,
the United States is unlikely to commit to the Kyoto Protocol’s
successor.73 The interpretation of the CDR and the concomitant
assignment of obligations, therefore, have major political implica-
tions for the success of a multilateral climate regime.
the pRinciple of cDR in application iS pRactically
ineffective
Any climate change agreement that excludes China and other
emerging economies from emission reduc tion targets will not
have practical utility because these countries’ rates of emissions
are increasing rapidly. Although China leads the world in GHG
emissions, it is in complete compliance with the Kyoto Protocol
under the current interpretation of CDR.74 Indeed, emissions from
China and other developing nations are growing so fast today that
even if all developed countries reduced their emissions to zero,
emissions from developing countries will cause global concen-
trations of GHGs to increase by over eighteen percent in sixty
years.75 This would be a dramatic increase, as GHG concentra-
tions have increased by thirty-f‌ive percent in the last 200 years,
and this comparatively gradual shift has set in motion the current
climate change crisis.76 These facts illustrate the present danger
in failing to engage developing countries—particularly China—in
more concrete efforts at long-term GHG emissions reduction.77 A
continued application of CDR in a way that allows major-emitter,
developing countries to avoid reduction targets will result in a
considerable amount of GHG emissions left unregulated.78
Moreover, because CDR is chief‌ly backward-looking, it
does not provide any mechanism to adapt to the evolving global
reality.79 The principle is now focused on the existing stocks of
52WINTER 2010
emissions that were produced when the major economies of the
United States and Europe industrialized and thus does not account
for the current and future emissions of emerging economies.80
The remedial nature of the principle of CDR in the UNFCCC is
necessary, as developed nations emitted the majority of the cur-
rent stock of greenhouse gases in the atmosphere, and they are
comparatively well-situated to reduce emissions.81 Neverthe-
less, it is not suff‌icient for the principle to be merely backward-
looking because China and other developing countries are making
signif‌icant current contributions to the global stock of emissions,
and will continue to do so in increasing proportions.82 Without
consideration for future emis sions, the current application of
CDR excludes major portions of emissions from regulation and
therefore hinders the overall effectiveness of the climate change
regime.83
NO CATEGORY CURRENTLY EXISTS TO PROPERLY
ADDRESS EMERGING ECONOMIES LIKE CHINA
The current division of obligations created by the principle of
CDR in the Kyoto Protocol lacks a proper category to encompass
China, an emerging economy and major-emitter that continues to
develop rapidly.84 The Protocol adopts the language of CDR from
the UNFCCC, and does not further differentiate among the group
of developing country parties.85 Rather, it re-emphasizes the dis-
tinctions of the UNFCCC, calling on the Annex I developed coun-
try parties to implement policies that minimize the adverse effects
of climate change, including the adverse impacts on other devel-
oping country parties and “especially” those types of developing
countries listed in Article 4.8 of the UNFCCC.86
Despite China’s efforts to depict itself as one of the develop-
ing countries that is “particularly vulnerable” to adverse climate
change impacts, economic data does not support that character-
ization.87 Further, recent history—from the Beijing Olympics
to China’s inf‌luence on global f‌inancial issues—also contradicts
the idea that China is a developing country by demonstrating its
relatively advanced level of development and sophistication.88
Plainly China does not f‌it into the same developing country cat-
egory as the least developed countries in Africa or especially-
vulnerable small island nations, and thus should not have similar
rights and obligations.89
Furthermore, it is highly relevant that China recently passed
the United States as the leading global emitter of GHGs because
it demonstrates the shifting realities of the climate change crisis.90
China may well want to maintain the current unnuanced con-
struction of CDR, which allows it to self-categorize as a devel-
oping country without binding reduction commitment targets. If
the world were not in such a precipitous position with regard to
climate change—as most scientists agree it is—under basic prin-
ciples of equity China would not be required to take the measures
the moment now demands of them. 91 Consequently, a set of dif-
ferentiated responsibilities that allow a major-emitting country
like China to go unregulated is fundamentally f‌lawed.92
Although China does not f‌it into the current developing coun-
try category, neither does it f‌it in with the developed countries
of Annex I and Annex II.93 For all of its recent progress, China
has not yet fully industrialized and continues to develop both its
physical infrastructure and its economy.94 A useful metaphor is
to envision China as consisting of a set of relatively developed
islands located in a sea of people living in developing country
conditions.95 Indeed, hundreds of millions of Chinese remain in
poverty, a characteristic China distinctly does not share with the
developed nations in Europe or the United States.96 According to
the 2008 World Development Index, all of the Annex I and Annex
II countries qualif‌ied as highly developed; China, by contrast, has
only medium development.97 Neither a developed, nor a least
developed country, China does not f‌it into either category under
the current application of the principle of CDR.98
THE UNFCCC NEEDS A NEW CATEGORY OF
EMITTER TO ENSURE GREATER PARTICIPATION
Although member countries must agree to be bound by the
protocols of the UNFCCC, there is no clear mechanism in the
Convention to determine the degree to which each country will
be bound.99 Therefore, the regime relies upon individual actors’
sense of responsibility for damage done to a common good—the
climate—and provides little else as incentive to commit to reduc-
ing emissions. The UNFCCC as a legal instrument relies on self-
designation and elective commitments made in the global public
interest.100
China and other emerging economies are unlikely to under-
take the costly and burdensome task of reducing GHG emissions
solely in the interest of an international common good.101 There-
fore, because it lacks both the teeth to impose binding commit-
ments upon parties and suff‌icient incentives to draw parties to
voluntarily commit, the UNFCCC has very few legal tools at its
disposal to obtain increased commitments out of unwilling parties.
the inteRnational community muSt uSe a vaRiety
of incentiveS in climate negotiationS
To many observers and participants, the 2009 Copenhagen
COP ended rather disappointingly, without a binding successor
to the Kyoto Protocol.102 The international community, however,
retains the opportunity, and in fact the imperative, to create a more
effective climate change agreement in the near future. The divi-
sion of responsibilities under the CDR is one area that must be
revised.
China could be persuaded by a combination of extra-legal
incentives to participate in a future international climate regime
that entails binding commitments.103 The incentives include the
prospect of increased global stature and an opportunity to eff‌i-
ciently solve an in ternational problem that domestically poses
great dangers, as well as pressure from internal and e xternal
sources.104
The f‌irst key incentive for China to accept binding commit-
ments in a successor to the Kyoto Protocol would be to mitigate
the serious threats that climate change impacts pose to Chinese
public health.105 As China’s GHG emissions increase, it will
become more diff‌icult for the Chinese government to ignore the
link between outdoor air pollution and mortality.106 Signif‌icantly
reducing GHG emissions could deliver important improvements
in public health while also contributing to the global effort to
53 SUSTAINABLE DEVELOPMENT LAW & POLICY
f‌ight climate change.107 Second, greater participation in the post-
Kyoto regime would provide a corresponding opportunity for
China to inf‌luence the design of the next international climate
change agreement to their national benef‌it.108 Because successful
international regimes distribute net benef‌its to participating coun-
tries, if China takes the lead among developing nations in f‌ighting
global climate change, its position at the negotiating table will be
enhanced and benef‌its f‌lowing to China from the structure of the
plan would ref‌lect that position.109 Finally, greater participation
in the f‌ight against climate change would further enhance China’s
reputation as an interna tional leader and indicate to the world
that China envisions a leadership role that involves greater global
responsibility.110
In addition to the incentives directly derived from greater
commitment to f‌ighting climate change, China faces pressure to
act from domestic as well as foreign sources.111 Within China,
intense GHG emissions have translated to incredible air pollu-
tion, which in turn has caused a corresponding public health prob-
lem.112 This situation poses a threat to the legitimacy of the CCP,
which has thus far focused on rapid development at the expense of
environmental quality.113 Further, the danger of widespread civil
unrest over climate change impacts is real.114 China may need to
take more aggressive action on air pollution and climate change
and deliver tangible results in order for the CCP to maintain con-
trol over the country.115
Finally, China may face increasing pressure to reduce emis-
sions from developing countries that are not enjoying a similar
economic boom.116 For example, small island developing coun-
tries and those countries the UNFCCC designates as least devel-
oped may resent that China lacks binding commitments yet is a
major GHG emitter.117 Likewise, developing countries that are
not experiencing rapid economic development should take a more
aggressive and vocal role in negotiations. Developing nations, on
average, will suffer greater costs than developed countries in the
wake of signif‌icant climate change.118 These actors must rally
support during the international climate negotiations for all major
emitters to take responsibility in reducing emissions.
Although the UNFCCC does not include many legal tools,
the COP could pursue other strategies to obtain greater Chinese
participation. If engaged in a general appeal to enlightened prag-
matism, China may agree to some binding commitments in the
successor to the Kyoto Protocol so long as it can expect both
global and domestic net benef‌its.119
a new categoRy foR high-emitting, emeRging
economieS
If China can be persuaded to commit to reducing emissions
in an international climate change regime, this could involve the
creation of a category creating obligations at a level somewhere
in between those of developed and developing countries par-
ties. Because the principle of CDR applied in the Kyoto Protocol
already has created distinctions within both the developed and the
developing country categories, the post-Kyoto regime could carry
the differentiation one step further to take into account emerging
economies.
Specif‌ically, one option would be to create a third distinct
category for China and other similarly-situ ated countries like
India and Indonesia.120 This category would require emerging
economies to reduce emissions to a lesser degree than developed
nations, but their commitments would increase over time as the
emerging economies attain developed nation status. In a converse
construction to the relationship between Annex I and Annex II
countries, emerging economies would commit to some binding
emission reduction targets, and would continue to receive the ben-
ef‌it of money and technology transfer from developed countries in
Annex I.121 China would certainly fall into an emerging economy
category and thus could be subject to a set of commitments occu-
pying the middle ground between developed countries and devel-
oping countries.122
CONCLUSION
Climate change is a complex, daunting problem requiring a
high degree of international cooperation for any effective solu-
tion. Thus far, the nations of the world have agreed on the exis-
tence of a problem, but a functional solution remains elusive.123
The Copenhagen Accord represents a step in the right direction,
as major-emitting, emerging economies like China and India have
signaled their intent to engage in the UNFCCC in the future.124
Going forward at subsequent COPs, China and the rest of the
world must reexamine the current interpretation of CDR, and real-
ize that a more nuanced categorization model is necessary. China
can and must be persuaded—perhaps through an appeal to Chi-
nese pride and pragmatism—to accept binding emissions-reduc-
tion quotas in a revised application of the principle of common
but di fferentiated responsibilities.125 Although achieving such
goals will be diff‌icult, it is nevertheless incumbent upon the global
community to seek out a feasible international regime to f‌ight the
adverse impacts of climate change.
Endnotes: Equitable But Ineffective: How the Principle of
Common But Differentiated... continued on page 65
Endnotes: Equitable But Ineffective: How the Principle of Common
But Differentiated Responsibilities Hobbles the Global
Fight Against Climate Change
1 See Juliet Eilperin, Long Droughts, Rising Seas Predicted Despite Future
CO2 Curbs, waSh. poSt, Jan. 27, 2009, at A4 (reporting the results of an inter-
national study showing that such impacts could persist for as long as 1,000
years).

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