Developing Nations and the Problem of the Environment
Chapter Forty
Syllabus topic 2, "Sustainable Development."
Pages 117 to 119 of 663
In one line
At Stockholm the developing States said that poverty is the worst form of pollution, and every environmental treaty since has had to accommodate that claim.
In exam wording: the position of the developing States in international environmental law rests on four propositions: that historical responsibility for the accumulated damage lies with the industrialised States, that development is a priority and a right, that capacity to act differs, and that environmental measures must not become a barrier to development; these are given legal effect through common but differentiated responsibilities, grace periods, incremental cost financing and technology transfer obligations.
Where the position comes from
Indira Gandhi at Stockholm, 1972. The Prime Minister of India was the only head of government other than the host to address the conference, and her argument was that poverty and need are the greatest polluters, and that the poor cannot be asked to bear the cost of a problem the rich created. That speech is the origin of the developing world's position in this subject and it is worth naming in an answer.
Stockholm Principle 11 records the agreement reached: the environmental policies of all States should enhance and not adversely affect the present or future development potential of developing countries.
Rio Principle 6: the special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority.
Rio Principle 7: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to 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 view of the pressures their societies place on the global environment and of the technologies and financial resources they command.
The four propositions, and the answer to each
| Proposition | What it says | The counter-argument |
|---|---|---|
| Historical responsibility | The stock of carbon in the atmosphere was put there by industrialisation | Emissions from developing countries are now the larger flow |
| Development as a right | The Declaration on the Right to Development 1986; Rio Principle 3 | A right to development is not a right to any particular technology |
| Differential capacity | Money, institutions and technical capability differ enormously | Capacity can be supplied, which is what the funds exist for |
| No barrier to development | Stockholm Principle 11; Rio Principle 12 | Some barriers protect the developing country's own environment |
A candidate who states both columns has written an answer. One who states only the first has written a slogan.
How the law gives effect to it
One: differentiated obligations. Article 4 of the Framework Convention on Climate Change divides commitments between all Parties, Annex I Parties and Annex II Parties. Article 3, paragraph 1, states the principle.
Developing Nations and the Problem of the Environment
Two: grace periods. Article 5 of the Montreal Protocol gives a Party whose annual per capita consumption of the controlled substances is below a stated level a ten-year delay in complying with the control measures. India joined the Protocol in 1992 on that basis.
Three: incremental cost financing. Article 4, paragraph 3, of the Framework Convention requires developed country Parties to provide agreed full incremental costs. Article 10 of the Montreal Protocol establishes the Multilateral Fund for the same purpose.
Four: technology transfer. Article 4, paragraph 5, of the Framework Convention; Article 16 of the Convention on Biological Diversity; Article 10 of the Paris Agreement. All are weakly worded and weakly performed, and an honest answer says so.
Five: conditionality of performance. Article 4, paragraph 7, of the Framework Convention is the sharpest provision of all: 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.
That last provision is worth quoting in an answer. It makes the developing Parties' obligation legally contingent on the developed Parties' performance, and there is nothing else quite like it in this book.
Worked example
A least developed country is asked to phase out a refrigerant.
- Does it have to? Yes, in the end. The obligation is common.
- When? Later. Article 5 of the Montreal Protocol gives it the grace period.
- Who pays? The Multilateral Fund, under Article 10, meets the agreed incremental cost.
- What if the money does not come? Under the Montreal Protocol its obligation is not formally contingent; under the Framework Convention, Article 4, paragraph 7, makes the position different.
- What happens if it simply fails? The non-compliance procedure, which begins with assistance rather than with sanction, and only then moves to a caution and to suspension of rights.
That last step is the pattern of the whole subject: the response to a developing Party's non-compliance is help first.
What it does NOT mean
It does not mean developing States have no obligations. They have the common ones. Differentiation is about the extent and the timing, not about exemption.
It does not mean the category is stable. The Annex I list of the Framework Convention was fixed in 1992 and has hardly changed, while the economies in it and outside it have changed a great deal. The Paris Agreement's response was to drop the annexes and let each Party set its own contribution, which is the single largest structural difference between Kyoto and Paris.
It does not mean poverty is good for the environment. Poverty drives deforestation for fuel, unsafe water and indoor air pollution. The Brundtland formula gives overriding priority to the essential needs of the poor precisely because meeting them is an environmental measure.
Developing Nations and the Problem of the Environment
Quick revision
- Indira Gandhi at Stockholm 1972: poverty and need are the greatest polluters.
- Stockholm Principle 11; Rio Principles 6 and 7.
- Four propositions: historical responsibility, development as a right, differential capacity, no barrier to development.
- Five legal devices: differentiated obligations, grace periods, incremental cost, technology transfer, and the conditionality in Framework Convention article 4, paragraph 7.
- Paris dropped the annexes; Kyoto had kept them. That is the biggest structural change in the regime.
Test yourself
1. Quote the substance of Rio Principle 7 and say what it acknowledges. That States have common but differentiated responsibilities in view of their different contributions to global environmental degradation, and that developed countries acknowledge the responsibility they bear in view of the pressures their societies place on the global environment and the resources they command.
2. Which provision makes a developing Party's implementation contingent on the developed Parties' performance? Article 4, paragraph 7, of the Framework Convention on Climate Change.
3. Give the strongest counter-argument to historical responsibility, and the response to it. That the current flow of emissions from developing countries is now larger. The response is that the concentration in the atmosphere is a stock, accumulated over two centuries, and that per capita emissions remain far higher in the industrialised States.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.