Key Concepts of International Environmental Law: Common but differentiated Responsibilities (CBDR) Sustainable Development

Key Concepts of International Environmental Law:

Common but differentiated Responsibilities (CBDR)

Sustainable Development

Introduction

Natural is a part of life as it is refers to the phenomenon of physical world and a life in general. God have been blessed us with nature that providing us with many valuable things but it is not being appreciate. Pollution of air water and soil take long period of time to recover and industry is the number one that contributes to the pollution. Global warming leads to the increasing of high temperature of earth and oceans that cause of ice melting, rising of sea level. USA and China is the most popular countries that contributes in the world economic but it is also the highest contribution in increasing the pollution in the world. As the similarity of this country is that both of them have the high demand of product from around the world.

For example in China, 20 million people lack access to clean drinking water and over 70 percent of lakes and rivers in China are polluted. The main factor of increasing on consumer production is due to increasing of population and China is the highest population in the world (Wong 2017). As the increasing of demanding of industrial product in whole world wide, people does not concern anymore on the impact of production towards the environment. Yes, economic is importance to enhance the stability of a country, however the increasing demands for consumer product is the reason natural resources are being exploit by human beings. Plastic are used for packaging are the reason the degradation of a land. Increasing of temperature and greenhouse effect is due to the production of cars, electronic device and luxury device.

‘Nothing is impossible’. Any solution can been made in protecting the environment and have sustainable development without harming the environment. Environmental issues should be handled by all concerned citizens to achieved long growth with sustainable development. In 1992, Rio Declaration were produce at the Earth Summit which set out 27 principles for sustainable development as a guide throughout the world. The declaration promoted the principles in the concern of human beings to achieve sustainable development as in the principle 1; eliminate poverty (Principle 5); the importance of environment for current and future generation (Principle 3 and 4); special consideration towards developing country (Principle 6); principle of common but differentiated responsibilities (Principle 7) (Review of implementations of the Rio Principles, 2011).The existence of Rio Declaration is that it is the only way that any country can have long term growth is to ensure that it is grounded in the context of environmental protection.

In this paper, we will be focusing on the principle 7 of Rio Declaration which is the concept of Common But Differentiated Responsibilities (CBDR) (Diez, n.d). We also will be discussing on the importance of CBDR principles. In this principle, states shall cooperate in a spirit of global partnership to protect, conserve and restore the health and integrity of the earth ecosystem (General Assembly, 1992). As there are different contribution towards the global environmental degradation, states have common but difference responsibility. As the developed countries acknowledge the responsibility that they have to bear in the international in terms to pursuit sustainable development due to the pressure by the societies on the global environment. We also focuses on the sustainable development principle with consists of four elements. They needed to be taken into considerations for the needs of present and future generations and for the environmental protection too. The role of equitable principle in the allocation of rights and obligations, the need to integrate all aspects of environmental and development and the need to interpret and apply the rules of international law in an integrated and systemic manner is very important in managing a sustainable use of the natural resources for the better future.

Principle of Common But Differentiated Responsibility (CBDR)

The principle of CBDR has developed from the application of equity in general international law (Honkonen, 2009). Equity and equality brought different meaning to each of the word, equality means sameness, it promotes fairness and justice by giving everyone the same amount of services and same thing. Whereas Equality means fairness, in this context, fairness literally meant that it is making sure that everyone can get the excess to the same opportunities. For instance, the government is giving out scholarship for the poor families so that their children could further their studies as the rich families did. This shows that everyone has the opportunity to get higher education no matter how poor the family is as long as it fulfilled the requirements to get the scholarship.

Moreover, CBDR is the recognition that the special needs of the developing countries must be taken into account in the development of the environment, application of green environment and the mitigation of the pollution, as accordance in the environmental law. The principle 7 of the Rio Declaration stated clearly that “States shall co-operate in a spirit global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem” (Herr, 2015). In view of the different contributions to the 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 the view of the pressures their societies place on the global environment and of the technologies and financial resources they command” (“Common but differentiated responsibilities,” 2018).

CBDR was established in United Nations Framework Convention on Climate Change (UNFCCC) during the Earth Summit in Rio de Janeiro on 1992 (Bizuneh, 2013). CBDR principle is mentioned in UNFCCC article 3 and 4 saying that whoever does more damaged to the environment, they should be the one who should pay more. In other words, the developed countries are responsible to contribute more compared to the developing and least developed countries. the developed countries or advanced countries is also known as the industrialized countries—industrialized countries tend to cause environmental degradation because of the massive amount of burning of fossil fuels accounts for air pollution facing industrialized cities, population growth, water pollution and so much more (“Environmental problems of the developed countries.,” n.d.).

The adoption of the CBDR principle is to address climate change and most comprehensive attempt to address negative impacts to global environment. It is noticeably that the principle of CBDR is based on the Polluter-Pays Principle, which the one that contributed the most to the degradation of the environment should pay more. Same goes to the principle of CBDR stated that it is the responsibilities of the developed and advanced countries to help towards the mitigation of the pollution, going towards green environment and raising the awareness of the international community about the concerns of our environment. In addition, the concept of CBDR also evolved from notion of “common concern” and “common heritage of mankind” the establishment of Inter-American Tropical Tuna Commission of 1949 and UNCLOS 1982, respectively (Schrijver & Weiss, 2004).

The principle of CBDR includes two elements, first of all, it concerns the common responsibility of states for the protection of the environment included the national, regional and global levels. Furthermore, the need to take account of differing circumstances, particularly in relation to each state’s contribution to the creation of a particular environmental problem and its ability to prevent, reduce and control the threat.

Common Responsibility

Common responsibility describes the shared obligations of two or more states towards the protection of a particular environmental resources, taking into account its relevant characteristics and nature, physical location and historic usage associated with it (Honkonen, 2009). State practise also supports the emergence of the concept of “common concern”, as reflected in the 1992 Climate Change Convention-which acknowledges that change in the Earth’s climate and its adverse effects are a common concern of humankind and 1992 Biodiversity Convention-affirms the biological diversity is a common concern of humankind (“Common but differentiated responsibilities,” 2018). As well as the 2010 Nagoya Protocol to the Biodiversity Convention does not use the language of common concern of but recognises the independence of all countries with regard to genetic resources for food and agriculture.

Differentiated Responsibility

Widely accepted in treaty and other practice of states. It translated into differentiated environmental standards set on the basis of a range of factors, including needs and circumstances, future economic development of developing countries and historic contributions to causing an environmental problem. The 1972 Stockholm Declaration also stated that 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 (Honkonen, 2009).

In the Rio declaration, Differentiated Responsibility are obviously stated in the Principles 6 and 11 saying that “The international community agreed the environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply, and the special situation of developing countries, particularly the least developed and those most environmentally valuable, shall be given priority” (“Common but differentiated responsibilities,” 2018). It means that the developed countries, also known as industrialized countries has to contribute more to the mitigation of pollutions rather than the developing countries. The reason is because industrialized countries tend to use more resources and caused more to the environment degradation. Furthermore, the principle of differentiated responsibility also has been applied to treaties and also other legal instruments applying to developed countries. For instance, in 1991 VOC Protocol, it allows parties to specify one of the three different ways to achieve reduction. VOC stands for Volatile Organic Compounds and also known as Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Emissions (Herr, 2015).

Under the 1992 Climate Change Convention, the principle of CBDR required specific commitments only for developed country parties and other developed parties and allowed differentiation in reporting requirements (“Common but differentiated responsibilities,” 2018). This principle has also resulted in the establishment of special institutional mechanisms to provide financial, technology and other technical assistance to developing countries to help them implement the obligations of particular treaties.

Kyoto Protocol

After the Convention and the Rio Declaration was adopted, the CBDR principle was followed in many of the subsequent legal instruments on environmental protection, like the Kyoto Protocol (O’Connell, 1967). The principle of CBDR strictly practice in the Kyoto Protocol. Kyoto Protocol was changed to the United Nations Framework Convention on Climate Change and was adopted on 11 December 1997, entered into force 16 February 2005 (Herr, 2015). Although according to the principle of CBDR, developing countries are not required to reduce emissions in the existing Kyoto Protocol, however, their further involvement is needed in global emissions reduction. In addition, the Kyoto Protocol also provides for a list of the annexes of the countries marking a clear and fixed distinction between the developed and the developing countries. However, since 1992, when the Kyoto Protocol was signed, there has been a massive difference in the emission levels by the countries of different annexes (“Common but differentiated responsibilities,” 2018). The protocol properly applied the CBDR principle as the principle’s basic premise is that everyone should bear at least some level of responsibility.

The Practice of CBDR

At the practical level, CBDR emerged at the 1992 conference as a compromise between the positions of developed and developing countries with regard to environmental protection. It aims at bringing about the conditions of environmental governance that, to be effective, need to be as inclusive as possible (“Common but differentiated responsibilities,” 2018). At the ethical level, it is an expression of general principles of equity in international law. It recognizes the historical correlation between higher levels of development and a greater contribution to the degradation of global environmental resources, such as water and air, and enables the sharing of responsibility accordingly. It establishes that developed countries, which had been able to develop for longer times unimpeded by environmental restrictions, now need to take a greater share of responsibility.

Case study on CBDR- Tuna Dolphin Case

The CBDR principle has been applied in several treaties, for instance, the 1952 Tuna Convention. The origin of Tuna Dolphin case was the United States’ Marine Mammal Protection Act (MMPA), which forced a prohibition on imports of fish from nations or countries that did not have a preservation program intended to secure and protect dolphins in the tuna-fishing process (Schrijver & Weiss, 2004). It turns out that tuna are often discovered swimming in schools underneath dolphins. In order to catch the tuna, fisherman used to drag large nets through the water and afterward pull them up under the together with tuna. Dolphins swimming under the tuna would be caught at the same time and die in the nets along with the tuna.

It categorizes tuna and fish as being of “common interest of mankind and the conservation of these species is aimed at serving common interest of mankind.” International Convention for the High Seas Fisheries of the North Pacific Ocean, 9 May 1952, United States Canada-Japan (Constance, 1993). This “common responsibility and common interest” imposes a duty on the international community to protect it. Common responsibility under CBDR was a response to the voices mainly coming from the developing world demanding fairer rules to international environmental cooperation.

Sustainable Development

Sustainable development is a general principle that says that states should ensure the development and use of their natural resources in a manner that is sustainable. The term sustainable development appear in treaties in the 1980s and firstly referred to in a treaty in the Preamble to the 1992 EEA Agreement. The term also considered to have been coined by the 1987 Brundtland Report at where the development that meets the needs of the present without compromising the ability of future generations to meet their own needs. The two concepts of the report were first the concept of ‘needs’. In particular the essential needs of the world’s poor, to which overriding priority should be given while the second concept is the idea of limitations imposed, by the state of technology and social organisation, on the environment’s ability to meet present and future needs. There are four legal elements of the concept of sustainable development in the international agreement. Firstly, the need to preserve natural resources for the benefit of future generation (the principle of intergenerational equity). Second legal element is the aim of exploiting natural resources in a manner which is ‘sustainable’, ‘prudent’, ‘rational’, ‘wise’ or ‘appropriate’ (the principle of sustainable use). The third element will be the ‘equitable’ use of natural resources, which implies that use by one state must take account of the needs of other states (the principle of equitable use or intragenerational equity). While, he fourth element is the need to ensure that environment considerations are integrated into economic and other development plans, programmes and projects and that development needs are taken into account in applying environmental objectives (the principle of integration).

Future generations

The idea that, as ‘members of the present generation, we hold the earth in trust for future generations’ is well known to international law. So, there are treaties such as 1946 International whaling Convention, the 1968 African Nature Convention and the 1972 World Heritage Convention at where all these treaties have sought to preserve particular natural resources and other environmental assets for the benefit of present and future generations. These incudes wild flora and fauna, the maritime environment, essential renewable natural resources, the environmental generally which are the resources of the earth, natural heritage, natural resources, water resources, biological diversity and the climate system.

Sustainable use of natural resources

It reflected in treaties adopting a ‘sustainable’ approach is a focus on the adoption of standards governing the rate of use or exploitation of specific natural resources rather than on their preservation for future generations. The significance of these term is that each recognises limits placed by international law on the rate of use or manner of exploitation of natural resources including those that are shared or are in areas beyond national jurisdiction.

Equitable use of natural resources

Equity and equitable principle are terms frequently relied upon in the international environmental texts. It is all about how to allocate future responsibilities for environmental protection between states at different levels of economic development which have contributed in different degreed to particular problems or economic development. For example the 2015 Paris Agreement refers to the need for implementation for the agreement to reflect equity and the 1992 Biodiversity Convention for the equitable sharing of the benefits arising out of the use of genetic resources.

Integration of environment and development

The fourth element of the ‘sustainable development’ is the commitment to integrate environmental considerations into economic and other development and to take into account the needs of economic and other social development in crafting, applying and interpreting environmental obligations. This provides the party the right to and should promote sustainable development which reflects a compromise text between those states which sought an express recognition of a right to development and those states which sought to dilute such a right by recognising only a ‘right to promote sustainable development’.

Case study on sustainable development – Shrimp/Turtle case

The shrimp-turtle dispute between the United States on one hand and Malaysia, India, Pakistan and Thailand on the other hand dates back to 1 may 1996. US imposed a trade embargo on the import of shrimp and shrimp products from countries that did not certify that the shrimps were caught by using the turtle-excluder devices (TEDs) in the trawling vessels and where the use of TEDs was not comparable in effectiveness to those required in US programmes. According the the US, the measure was taken and aimed to protect the endangered species of the sea turtles (Srivastava & Ahuja, 2002).

World Trade Organization Appellate Body noted that the Preamble to the WTO Agreement explicitly acknowledges ‘the objectives of sustainable development’ and characterised as a concept that has been generally accepted as integrating economic and social development and environmental protection. The concept in the Appellate Body’s conclusion that sea turtles are an ‘exhaustible natural resource’ (Article XX (g) for GATT) and had sufficient nexus with the United States to justify the latter state’s conservation measures. The Appellate Body also invoked ‘sustainable development’ in assessing whether US measures had been applied in a discriminatory fashion.

Conclusion

In the nutshell, CBDR is more towards to polluters-pay principle which consists two elements (i) Concerns the common responsibility of states for the protection of the environment, part of it included the national, regional and global levels and (ii) the need to take account of differing circumstances, particularly in relation to each state’s contribution to the creation of a particular environmental problem and its ability to prevent, reduce and control the treats. As the common responsibility which emphasize the obligations of two or more states towards the protection of a particular environmental resources taking into account the characteristic and nature, location and historic usage. While states have differentiated responsibility as states have different environmental standards set based of the range of factors including needs and circumstances, future economic development of developing countries and historic contributions. The sustainable development elements also must be taken into measure for the needs of present and future generations. Enhancing this principles, states have to take the needs of present and future generations into consideration, integrate all aspect of environment and development, applying the international law in an integrated and systematic manner to ensure sustainable development.

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