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Differential Treatment in International Environmental Law and the Climate Regime: From ‘Common but Differentiated Responsibilities’ to ‘Common but Differential Responsibilities and Respective Capabilities’

Conducting a doctrinal analysis using historical and descriptive reporting, hermeneutics for the interpretation of texts, and literature synthesis for connecting relevant themes in representative bodies of literature, the article argues for the redefinition of differential treatment in international environmental law (IEL) and the climate regime. The principle of differential treatment underlies differential partnership. Under the principle, countries bear different levels of responsibility for environmental protection. While this supported the economic aspirations of developing countries ab-initio by giving them lower environmental protection responsibilities, its modification with the phrase “respective capabilities” seems to have varied its interpretation and, perhaps, application. This suggests that there might be disparities between its popular notions: common but differentiated responsibilities (CBDR), and common but differentiated responsibilities and respective capabilities (CBDR-RC). CBDR operates under general IEL while CBDR-RC is peculiar to the climate regime. The variation across these notions might have embedded implications for environmental protection. Given this, there is the need to redefine differential treatment to ascertain these variations and their potential implications. In any case, since the climate regime appears to be the most popular in IEL, CBDR-RC currently tends to overshadow CBDR. This makes it an extremely important notion for environmental protection at the moment, and a point to start redefining differential treatment. In the light of the CBDR-RC politics in climate policy, the recent emergence of concepts such as “national circumstances” and “nationally appropriate mitigation actions” has crystalized into the idea of “intended nationally determined contributions” (INDCs) in an effort to reflect domestic capacities while creating a balance in the commitments of parties. However, as attractive as this development might seem, it has the risk of making climate control commitments precarious. For example, how could Nigeria reasonably advance climate control in view of its current financial struggles, due to the oil crash, without some certainty about the amount of support it might receive, and how could one ensure that China makes sufficient commitments in view of its increasing capabilities? While there are currently no all-encompassing answers to these, a starting point could be that the new climate regime should set baselines for INDCs. In any case, all parties should bear responsibilities for mitigation. But then, since some might have insufficient capabilities to implement reasonable commitments, the new climate regime might also need to renew the sense of differential partnership, acknowledging differences with effect on responsibilities.