Intragenerational Equity and Common but Differentiated Responsibility

In the climate treaties

The Framework Convention 1992, article 3(1) provides that the Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities, and that accordingly the developed country Parties should take the lead in combating climate change and its adverse effects.

Article 4 then differentiates by annex: the commitments of the Parties listed in Annex I are more onerous than those of the rest.

Article 4(7) is the clause India relies on most: the extent to which developing country Parties will effectively implement their commitments will depend on the effective implementation by developed country Parties of their commitments related to financial resources and transfer of technology, and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.

The Paris Agreement 2015, article 2(2) provides that the Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.

That last phrase is the change, and a strong answer notices it. The Convention differentiated by a fixed list drawn up in 1992. The Paris formula makes differentiation depend on national circumstances, which change. Developing countries whose emissions have grown since 1992 read the addition as a softening of the fixed division; developed countries read it as a necessary updating. The argument is not resolved.

The Indian position

Consistent since 1972. Historical responsibility, per capita rather than total emissions as the equitable measure, and the space to develop. The chapter on developing economies sets out the argument and the Stockholm principles that recorded it.

And what India actually does. India has communicated nationally determined contributions under the Paris Agreement, announced a net zero target, and expanded renewable generation substantially. A complete answer says both things: India argues for differentiation and does not use it as an exemption.

Within India

Three concrete instances, each from a case in this book.

The Dehradun quarrying litigation. Closure protected a watershed used by a large population and destroyed the livelihood of lessees and workers. The Supreme Court said in terms that this was a price that had to be paid, which is a distributional judgment rather than an environmental one.

The Taj Trapezium orders. The Court directed relocation of industries and, in the same orders, provided for the workmen: continuity of employment, a shifting allowance, and one year's wages as a gratuitous payment where an industry closed. That is intragenerational equity operating inside a remedy.

The Narmada case. The entire dispute, after the environmental questions were disposed of, was about who bore the cost of a benefit that went to others, and the Court's answer was rehabilitation pari passu with construction.

What the principle does NOT do

It does not exempt anybody. Responsibilities are common and differentiated. Rio Principle 11 in the same instrument requires every State to enact effective environmental legislation.

It does not fix a share. Nothing in Principle 7 says how much more a developed country must do, which is why every climate negotiation has to settle the question again.

It does not by itself produce a remedy at home. Within India the principle operates through the design of a remedy, in rehabilitation and compensation, rather than as a rule a petitioner can invoke.

Worked example

A conference is negotiating a treaty to cut emissions. Country A, wealthy, with high emissions per person and a long industrial history, proposes that every State cut by the same percentage from today's level. Country B, poor, with low emissions per person and a large population still without electricity, refuses.

Country A's argument. The atmosphere does not care where a tonne comes from. A uniform rule is simple, equal on its face, and easy to verify.

Country B's answer, in three parts, and each has an instrument behind it.

The stock and the flow are different things. Most of what is in the atmosphere was put there by the countries that industrialised first. A rule that starts from today's level treats the historical contribution as though it did not exist.

Per person, not per State. Country B's total may be large because its population is large, and its emissions per person may be a fraction of Country A's. The unit of equity is the person.

And development is not optional. Country B has households without electricity. Rio Principle 11 says the environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries, which the Supreme Court quoted in Essar Oil Ltd v. Halar Utkarsh Samiti.

The principle that resolves it: common but differentiated responsibilities. The responsibility is common, because the problem is shared and nobody is exempt. It is differentiated, because contributions to the problem and capacities to address it are not equal.

What "differentiated" actually buys, and this is the part candidates leave out. Not exemption. Different timing, different stringency, and finance and technology transfer from those with the capacity to those without.

The domestic mirror. The same argument runs inside a country. The settlement beside the waste transfer station contributed least to the waste and receives most of the harm, and M.K. Ranjitsinh now supplies the constitutional form of the point: the inability of underserved communities to adapt to climate change violates the right to equality as well as the right to life.

The formulation to write. Intergenerational equity is fairness between generations; intragenerational equity is fairness within one, and common but differentiated responsibilities is the operative expression of the second in international environmental law.

Quick revision

• Intragenerational equity runs in two directions: between countries and within one. Do not take only the first.
• Rio Principle 7: in view of the different contributions to global environmental degradation, States have common but differentiated responsibilities, and developed countries acknowledge the responsibility they bear in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.
• Two grounds of differentiation, and they are distinct: contribution, which is historical, and capability, which is present.
• UNFCCC article 3(1): equity, common but differentiated responsibilities and respective capabilities, and developed countries to take the lead. Article 4(7): developing country implementation depends on developed country delivery of finance and technology, and economic and social development and poverty eradication are their first and overriding priorities.
• Paris article 2(2) adds "in the light of different national circumstances", which is read as softening the fixed 1992 division.
• Within India: Dehradun named who bore the cost; the Taj Trapezium orders provided for the workmen; Narmada turned on rehabilitation.

Test yourself

1. State Rio Principle 7 and identify the two distinct grounds of differentiation in it.

That States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem; that in view of the different contributions to global environmental degradation, States have common but differentiated responsibilities; and that the developed countries acknowledge the responsibility they bear in view of the pressures their societies place on the global environment and of the technologies and financial resources they command. The two grounds are contribution, which is historical responsibility, and capability, which is present technology and finance.

2. What does article 4(7) of the Framework Convention provide, and why does India rely on it?

That the extent to which developing country Parties will effectively implement their commitments depends on the effective implementation by developed country Parties of their commitments on financial resources and transfer of technology, and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of developing country Parties. India relies on it because it makes developing-country performance conditional on delivery of finance and technology.

3. What changed between the Convention formula and the Paris formula?

The Paris Agreement adds the words "in the light of different national circumstances" to common but differentiated responsibilities and respective capabilities. The Convention differentiated by a fixed annex drawn up in 1992; the Paris formula makes differentiation depend on circumstances that change, which developing countries read as a softening of the original division.

4. Give an Indian example of intragenerational equity operating inside a judicial remedy.

The Taj Trapezium orders, in which the Supreme Court directed the relocation or closure of industries in the Trapezium and, in the same orders, provided for the workmen by directing continuity of employment, a shifting allowance and one year's wages as a gratuitous payment where an industry closed. The environmental benefit went to one group and the cost fell on another, and the remedy was designed to redistribute it.