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10 Sustainable Dev. L. & Pol'y 49 (2009-2010)
Equitable but Ineffective: How the Principle of Common but Differentiated Responsibilities Hobbles the Global Fight against Climate Change

handle is hein.journals/sdlp10 and id is 148 raw text is: EQUITABLE BUT INEFFECTIVE: How THE PRINCIPLE OF COMMON BUT DIFFERENTIATED RESPONSIBILITIES HOBBLES THE GLOBAL FIGHT AGAINST CLIMATE CHANGE by Mary J. Bortscheller* INTRODUCTION cientists now predict that despite global efforts to reduce greenhouse gas emissions, climate change effects like long-term droughts and significant sea-level rise are inevi- table.1 Consequently, the climate change crisis demands a com- prehensive international response, with meaningful participation by all the major greenhouse gas (GHG) emitters.2 The current climate regime embodied in the Kyoto Protocol distinguishes between developed and developing countries in a way that main- tains an invidious inertia in the international fight against climate change. China is a major GHG emitter that does not have any obliga- tions to reduce emissions under the Kyoto Protocol, the current binding international climate change regime.3 The international community took a fresh look at the Protocol at the 15th Confer- ence of the Parties (COP) in Copenhagen in December 2009. A critical question at that time was whether China would agree to reduce its GHG emissions; China's position impacts the global community's ability to combat climate change because other major GHG emitters (most notably the United States) have used China's lack of binding commitments to justify their non-partici- pation in the Kyoto Protocol.4 Positive signs were evident during and in the wake of the Copenhagen COP, however, when China played a key role in drafting the Copenhagen Accord, and fur- ther acknowledged the need for all countries to take action to fight climate change.5 Notably, China agreed to international verifica- tion of domestic mitigation measures, a significant step towards increased transparency in the regime.6 The fight against climate change is necessarily a global one, and China's full participation in the United Nations' Framework Convention on Climate Change (UNFCCC) is especially cru- cial in the short term.7 And although the Copenhagen COP did not produce a binding document, future COPs will. In so doing, the international community must reassess the application of the principle of common but differentiated responsibilities (CDR), which divides countries into two primary categories-developing and developed-and determines obligations accordingly.8 This article examines China's unique situation within the UNFCCC and argues that the current interpretation of CDR is politically and practically flawed because it leaves out emerging economies that are major GHG emitters. The principle of CDR, as currently applied, does not distinguish among developing nations in a way that recognizes the critical importance of emerging economies like China.9 China and other large emerging econo- mies, no longer fit comfortably in the CDR's existing develop- ing country category.10 A third category is therefore necessary to encompass emerging economies like China. The international cli- mate regime's failure to actively engage China presents a problem for the entire international community. Indeed, as an emerging economy and a major GHG emitter, and as an international actor whose participation in the climate regime impacts other major emitters' compliance, it is essential that China actively partici- pates in the successor agreement to the Kyoto Protocol.12 Current incentives in the Protocol are not sufficient to persuade China to accept emission reduction commitments; consequently, the next protocol requires a combination of extra-legal incentives to con- vince China to take a more active role.13 Further, while China has made statements about working together within the UNFCCC structure, the United States and other developed countries have not yet succeeded in persuading China to accept binding commit- ments in a climate change regime.14 COMMON BUT DIFFERENTIATED RESPONSIBILITIES In recognition of the daunting environmental problems it faces, China is shifting toward increased domestic environmental responsibility, making resource conservation and environmental- ism major policy goals.15 China's commitment to the interna- tional fight against climate change, however, is not on par with other major emitters like the United States and Europe because it does not involve any GHG emissions reductions.16 This situation results from the application of CDR in the international climate change regime. 17 The presence of the principle of CDR, in turn, is the result of a complex negotiation process between developing and developed countries. During the UNFCCC negotiations in 1992, both developed and developing countries had concerns about who would be the first to reduce GHG emissions, and who would finance the associated costs.18 Developed countries wanted an inclusive international agreement for maximum effect and legitimacy.19 Developing countries hesitated to commit themselves to reduc- tion targets when they had historically not contributed to global * Mary J. Bortscheller is a J.D. Candidate, May 2010, at American University Washington College of Law. SUSTAINABLE DEVELOPMENT LAW & POLICY

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