Common but Differentiated Responsibilities- The Antiquated

Introduction 

‘Don’t hurt ants while you walk- Jainism’

At the beginning of the environmental jurisprudence, when the States were bothering about their economic development especially those States which were young independents, it would have been a tedious process to make them accept norms of environmental protection if not for the principle of ‘Common but Differentiated Responsibilities and Respective Capabilities’. Being laid under Article 3 of the UNFCCC it takes into consideration the specific circumstances of the developing States and in its essence recognizes the varied obligation standards for the developed and developing States to achieve the common goal of protecting the climate system. 

CBDR and NDC

There was a long drawn discrepancy on whether climate change obligations should be based on past emissions or it should be based on each state’s capacity. The developed states were not in line with the former though it received a tremendous support of the developing states. However, the later was increasingly accepted by all the states when it was established in the name of ‘Nationally Determined Contributions’ in the Paris Agreement. On analyzing the implications of this new method of determining climate change obligations it could be sensed that it is the extension of Common but Differentiated Responsibilities with relaxation on the developed states as well.

Status of CBDR under International Law

No doubt this principle has achieved tremendously in turning the heads of developing States from the economic development to climate protection, which was the need of the hour. Despite being recognized as the limelight principle in the interpretation of treaty obligations related to climate change (Obligations of States in Respect of Climate Change, Advisory Opinion, ICJ Rep. 187, 174 (July 23, 2025) it is high time to review its relevance at this hour of urgent mitigation efforts from all. Though it was reiterated through climate change treaties the states did not intend per se to accept on the binding nature of the principle itself failing to fulfill the element of opinion juris in the formation of Customary International Law. Also, the principle has not attained the status of jus cogens for the obvious reason that the principle basis itself on the changing assessment of whether a state is a developed state or not at the point of assessment. It should also be noted that there is no common scale of assessment to determine the State’s capacity to fulfill its obligations under climate change treaties, therefore it is self-assessed by each state regarding its capacity, beating around the concept of  jus cogens. As the principle is in the nature of ‘means’ rather than end in itself, on focusing more on the ‘means’ it has failed to attain its end. This is the criticism faced by ‘equity’ since its inception upon which the principle basis itself (Bushra Zeb Khan, Common but Differentiated Responsibilities: A Shield for Equity or Barrier to Global Climate Action, 13 J.A.D.S 1159 (2024). As the principle when introduced came with its own set of controversies involving its non-acceptance by the developed states it could rather not achieve the status of erga omnes obligation as well. 

Who is the sufferer?

However, developing states have started realizing that it is no more about who has committed the crime in the past, the suffering has become real and well perceived to all and it is worse in the case of Small Island Nations (Small Island States on Climate Change and International Law, Advisory Opinion,  ITLOS Rep. 31 5 (May 21, 2024), the coastal States facing continuous cyclones, continental states facing heat waves, cloud burst, flash floods and in the countries with less adaptation facilities to accommodate such circumstances.

Market Solutions

Though the climate finance and technology transfer obligations of the developed states have to remain intact, as it would aid the developing states to increase their potential to fulfill their international obligations arising out of Climate Change treaties, it does not mean developing states can hide themselves behind. Market based solutions such as carbon trade involving carbon credits, carbon offsetting, carbon allowance etc. are acting as smoke screen of the climate change consequences. Also, innovative policies encouraging green technology and green products should not stop with the term ‘green’ and the same should not be used as a marketing strategy. Market Solutions seem artificial and alien to the objective of protecting climate system. Wherever education fails to inculcate basics in a human market solutions are filling such gaps and today it has become the only solution. 

 Obligation of Due Diligence and Co-Operation

Climate Change obligations have crossed the limits of giving relaxation for the Developing States though they deserve it. It may be the principle of Common but Differentiated Responsibilities or the method of Nationally Determined Contributions, becomes unworkable without the essence of ‘obligation of due diligence’ which has attained the status of Customary International Law (Obligations of States in Respect of Climate Change, Advisory Opinion, ICJ Rep. 187, 174 (July 23, 2025). Though this obligation is in the nature of ‘conduct of states’ it should be extended in determining each state’s target of reducing emissions. Thus it could be well-perceived that the principle of Common but Differentiated Responsibilities is outdated and the Nationally Determined Contributions is not about contributions anymore rather targets tied by the ‘obligation of due diligence’. For this purpose, standard set of criteria is required to assess if the targets are determined accordingly taking into consideration technology, finance and adaptation strategies available with a state. 

The obligation to co-operate which is also interpreted to be in the nature of conduct it should be extended to determine reduction targets. It has got an over-riding effect today as it attained the status of erga omnes obligation and became part of Customary International Law. It is the only principle which touches upon to co-operate rather than to co-exist leaving alone the unhealthy competitive climate change obligations.

Concern of the humanity

Climate Change is the ‘concern of the humanity as a whole’ wherein punishing few states on their past actions and permitting relaxations on the developing states would indeed be a punishment for the whole of humanity. Thus the obligations arising out of Climate Change treaties should not be based on the fixed categories of developing-developed states rather it should be on ‘fullest efforts on all ends’. Everything seem impossible without making an effort towards it and yes, we can walk without hurting ants with due diligence.

Lesser the ecological footprint higher your human worth!