Developing states and international environmental law: The importance of differentiated responsibilities

International and Comparative Law Quarterly

Volumn 49, Issue 1, 2000, Pages 35-60

  French, Duncan ^a  

^a UNIVERSITY OF READING   (United Kingdom)

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EID: 85013841048     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300063958     Document Type: Article

References (70)

1. “Sustainable Development” is the notion that economic development, social progress and environmental protection can be made compatible. As the 1987 Report of the World Commission on Environment and Development, Our Common Future noted, “[it is] development that meets the needs of the present without compromising the ability of future generations to meet their own needs”, p.43.
2. 1992 Framework Convention on Climate Change (31 I.L.M. (1992) 849).
3. 1992 Convention on Biological Diversity (31 I.L.M. (1992) 822).
4. See UN Doc.A/CONF.151/26/REV.1 (Vol.1), p.3: Declaration of the United Nations Conference on Environment and Development; p.9: Agenda 21; and p.480: Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests.
5. OECD SC/Press (91) 71 (3 Dec 1991), 3: Policy Statement of Meeting of OECD Ministers on Environment and Development.
6. UN Doc. A/CONF.151/26 (Vol.IV) (1992), 20.
7. J. Kovar, “A Short Guide to the Rio Declaration” (1993) 4 CJIELP, 128–129: “The absence of these elements from the Rio Declaration made it very difficult for China and some delegations from the G-77 to accept the final text.”
8. A. Kiss, “The Rio Declaration on Environment and Development” in L. Campiglio et al (Eds), The Environment after Rio: International Law and Economics (1994), 61.
9. P. Malanczuk, “Sustainable Development: Some Critical Thoughts in the Light of the Rio Conference” in K. Ginther et al (Eds), Sustainable Development and Good Governance (1995). 32–33.
10. D. Magraw, “Legal Treatment of Developing Countries: Differential, Contextual and Absolute Norms” (1990) 1 CJIELP, 69–99.
11. Magraw, CJIELP nn.12,74.
12. See, for example, Art.5 (obligations of affected country Parties) and Art.6 (obligations of developed country Parties) 1994 Desertification Convention (33 I.L.M. (1994) 1328).
13. See Art.34 1994 ITTA (33 I.L.M. (1994) 1016) on special measures for developing countries. In particular, Art.34.1: “Developing importing members whose interests are adversely affected by measures taken under this Agreement may apply to the Council for appropriate differential and remedial measures”.
14. See Annexes I and II 1994 Sulphur Protocol (33 I.L.M. (1994) 1540).
15. Art.26 1996 Dumping Protocol allows State Parties to adhere to an adjusted compliance time schedule for specific provisions (36 I.L.M. (1997) 1).
16. On a related issue, both the Climate Change Convention (Art.4.3) and the Kyoto Protocol (Art.11.2) (371.L.M. (1998) 22) utilise the notion of “appropriate burden sharing” to guide the future negotiation of financial commitments between developed country Parties. As with the use of the notion of equity in international environmental law, “burden sharing” presumably requires all relevant considerations to be taken into account before a conclusion is reached.
17. Art.24.1 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (“Straddling Fish Stocks Convention”) (34 I.L.M. (1995) 1542).
18. Adopted on 1 Nov. 1995 at the Intergovernmental Conference to Adopt a Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (A/51/116, Annex I, App.II). It can be found in (1996) 26 E.P.L. 1, (1996) 37.
19. UNGA Res.2997 (XXVII) (1972).
20. See Arts.15–18 1972 World Heritage Convention (1037 U.N.T.S. 151).
21. Conference Res. C.43.1971 Ramsar Wetlands Convention (996 U.N.T.S. 245).
22. For a brief introduction to the GEF, sec P. Sands, Principles of International Environmental Law (Vol.I: Frameworks, Standards and Implementation) (1995), 736–741.
23. Decision of 1/7 of the First Conference of the Parties (1992) to the 1989 Basel Convention created two trust funds. The first was an ordinary trust fund to provide financial support for the secretariat; the second fund was the Technical Cooperation Trust Fund designed to “assist developing countries and other countries in need of technical assistance in the implementation of the Basel Convention” (Annex II: Terms of Reference, para.1) (28 I.L.M. (1989) 657).
24. Arts.11 and 21.3 1992 Climate Change Convention
25. Arts.21 and 39 1992 Biodiversity Convention.
26. Art.21 1994 Desertification Convention. The Financial Mechanisms under the Climate Change, Biodiversity and Desertification Conventions are all partly administered by the restructured GEF.
27. Art.26.2 1995 Straddling Fish Stocks Convention. Funding is also available at the regional level
28. Art.IX.31996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (36 I.L.M. (1997) 777) seta up a supplementary conservation fund for the purposes of “monitoring, research, training and projects relating to the conservation of cetaceans”.
29. Art.25.2 1995 Straddling Fish Stocks Convention.
30. Art.l3.1(l) 1996 London Protocol.
31. See for example, Art.6 1992 Climate Change Convention (education, training and public awareness)
32. Arts. 12 (research and training) and 13 (public education and awareness) 1992 Biodiversity Convention
33. ss.2 and 3 1994 Desertification Convention.
34. Art.19.1.1994 Desertification Convention.
35. A. Timoshenko, “From Stockholm to Rio: The Institutionalization of Sustainable Development” in W. Lang (ed.), Sustainable Development and International Law (1995), 154.
36. Sustainable Development and International Law.
37. P. Sands, “International Law in the Field of Sustainable Development” (1994) LXV BYIL, 344.
38. S. Chowdhury, “Common but Differentiated Responsibility in International Environmental Law. from Stockholm (1972) to Rio (1992)” in K. Ginther et al (Eds), BYIL nn.11, 333.
39. A. Hurrell and B. Kingsbury, “An Introduction” in A. Hurrell and B. Kingsbury (Eds), The International Politics of the Environment (1992), 39.
40. Hurrell and Kingsbury, The International Politics of the Environment nn.53, 39.
41. The International Politics of the Environment.
42. S. Vasciannie, Land-locked and Geographically Disadvantaged Stales in the International Law of the Sea (1990), 26.
43. Cf. Certain Phosphate Lands in Nauru I.C.J. Report (1992) 240. The case before the Internationa] Court of Justice involved the liability of trustee States (and, by analogy, colonial powers), for environmental damage to territories which they administered. However, the court never discussed the substance of the case as Australia paid $107 million in full and final settlement.
44. P. Sands et al (Eds), Documents in International Environmental Law (Vol. IIA) (1994). 873.
45. Art.4.7 1992 Climate Change Convention
46. Art.20(4) 1992 Biodiversity Convention.
47. Sands, Climate Change Convention nn.50, 376–377: “This language, reflecting the essence of the interdependence between North and South which transcends all aspects of UNCED, was carefully drafted. In the event that developed countries fail effectively to fulfil their financial obligations, the developing countries' legal commitments will continue to exist, but they will not be called upon to implement them effectively”.
48. Interestingly, the States of Nauru, Tuvalu and Kiribati issued identical statements to the 1992 Climate Change Convention declaring that it was their “understanding that signature of the convention shall in no way constitute a renunciation of any rights under international law concerning state responsibility for the adverse effects of climate change, and that no provisions in the convention can be interpreted as derogating from the principles of general international law” see Sands, Climate Change Convention nn.206,275.
49. See E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (1989): “[i]n the intragenerational context, conservation of access implies that all people should have a minimum level of access to the common patrimony”.
50. Twenty-first preambular paragraph, 1992 Climate Change Convention.
51. Hurrell and Kingsbury, Climate Change Convention nn.53,39: “rich countries [must]… provide assistance to the South to cover costs of specific measures to tackle global environmental threats sq that resources are not diverted from development”.
52. International Law Association (ILA), Report of the Sixty-Sixth Conference (held at Buenos Aires, Argentina) (London: ILA) (1995), 116.
53. Third preambular paragraph, 1992 Climate Change Convention.
54. 1995 Report of the Expert Group on Identification of Principles of International Law for Sustainable Development, para.78.
55. 1995 Report of the Expert Group on Identification of Principles of International Law for Sustainable Development, para.77.
56. Vasciannie, Report of the Expert Group on Identification of Principles of International Law for Sustainable Development nn.58, 25: “the interdependence of States in the international community has generated strong pressures on developed countries to assume responsibility for their developing counterparts”.
57. G. de Berdt Romilly, “Comment on P. Sand's Paper on Institutionalizing Sustainable Development” in W. Lang (ed.), Report of the Expert Group on Identification of Principles of International Law for Sustainable Development nn.47, 188.
58. R. Anand, Confrontation or Cooperation? International Law and Developing Countries (1987), 45: “Proclaiming the 1970s as the Second UN Development Decade the General Assembly added that ‘economic and social progress is the common and shared responsibility of the entire international community’”.
59. A. Jordan, The International Organisational Machinery for Sustainable Development (1993), 7. Arguably, the effect of such “sweeteners” can be seen in the fact that many more developing States acceded to the Montreal Protocol after 1990, than other environmental conventions, such as the 1979 Bonn Convention, which contain little or no differentiation.
60. The International Organisational Machinery for Sustainable Development.
61. A.Boyle, “Comment on D. Pone-Nava's Paper on Capacity-Building” in W. Lang (ed.), The International Organisational Machinery for Sustainable Development nn.47, 138: “the arguments for linking … [financial and technology transfer] provisions to environmental protection measures are different from the focus on economic self-determination that prevailed in the resource conflicts of the 1970s. Now the problem is to persuade developing states to participate in treaty regimes that they may perceive as offering little benefit or as hindering their'freedom to develop”.
62. The International Organisational Machinery for Sustainable Development.
63. G. Handl, “Environmental Security and Global Change: The Challenge to International Law” (1990) 1 Y.I.E.L 9. In fact, trying to beat the “lowest common denominator” problem may actually be considered a further justification for differentiation.
64. Y.I.E.L.
65. Handl, Y.I.E.L nn.83,10. However, Handl does go on to say that “retaining uniformity with regard to core obligations while taking into account states' socio-economic conditions, are entirely compatible objectives for multilateral regulatory regimes”. The question must therefore be what he considers “core obligations”, and what effect should socio-economic conditions have upon them?
66. Boyle, Y.I.E.L nn.81, 139.
67. I.C.J. Report (1997) 88.
68. Jordan, I.C.J. Report nn.79, 7: “the North's offer of extra resources and appropriate access to environmentally friendly technologies, was [at UNCED] both narrow (i.e. it was mainly for global environmental protection) and limited (i.e. it still left open the question of patents and intellectual property rights), but it proved to be sufficiently large to garner the necessary level of developing country support”.
69. P. Allott, Eunomia: New World Order for a New World (1990), 298: “International society will create an appropriate legal system for itself in conceiving of itself at last as society”.
70. Magraw, “International society will create an appropriate legal system for itself in conceiving of itself at last as society” nn.12, 99.