nye102.pdf

COMMON BUT DIFFERENTIATED

RESPONSIBILITY: THE KYOTO

PROTOCOL AND UNITED

STATES POLICY

AUL

G. H

ARRIS

NTRODUCTION

The Framework Convention on Climate Change (Climate

Convention),

signed at the 1992 United Nations “Earth Sum-

mit” in Rio de Janeiro, is the ﬁrst international legal instrument

to address climate change and is arguably the most comprehen-

sive international attempt to address adverse changes to the

global environment. The overriding goal of the Convention is

the “stabilization of greenhouse gas concentrations in the atmos-

phere at a level that would prevent dangerous anthropogenic in-

terference with the climate system.”

Industrialized countries

voluntarily agreed to reduce their emissions of greenhouse gases

(GHGs) to 1990 levels by 2000.

Few of those countries, how-

ever, will meet this target. The United States, which contains

only about four percent of the world’s population and produces

about one-quarter of the world’s greenhouse gases, is expected to

exceed the target by about thirteen percent.

The Climate Convention is a framework agreement. It lays

out several commitments and principles, but the most important

speciﬁc ways in which those provisions will be actualized—i.e.,

which countries will lower GHG emissions and by how much—

* Senior Lecturer, Department of Politics and Modern History, London

Guildhall University; Ph.D., Politics, Brandeis University. This Article is based

on research undertaken at the Oxford Centre for the Environment, Ethics and

Society at Mansﬁeld College, Oxford University. Research support was pro-

vided by Sun Life Assurance. The author wishes to thank the editors of the

N.Y.U. Environmental Law Journal for their helpful comments.

United Nations Conference on Environment and Development: Frame-

work Convention on Climate Change, May 9, 1992, 31 I.L.M. 849 [hereinafter

FCCC].

Id. art. 2, 31 I.L.M. at 854.

See id. art. 4(2)(b), 31 I.L.M. at 857.

See E

NERGY

NFO

. A

DMIN

., A

NNUAL

NERGY

EVIEW

1996 (1997); E

N-

ERGY

NFO

. A

DMIN

., E

MISSIONS OF

REENHOUSE

ASES IN THE

NITED

TATES

1996 (1997).

28 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

were left to subsequent international negotiations and protocols.

In an effort to achieve more concrete action on GHG emissions,

parties to the Convention agreed to negotiate, in time for the

third Conference of the Parties in Kyoto at the end of 1997, a

protocol laying out binding targets and timetables for reductions

of GHGs by developed countries.

Among the key principles in the Convention left to be oper-

ationalized was that of “common but differentiated responsibil-

ity” (CBDR), whereby industrialized developed countries would

take the lead in addressing the climate problem, speciﬁcally ex-

cluding developing countries from binding GHG emissions re-

ductions.

This principle is grounded in shared notions of

fairness: the developed countries are disproportionately respon-

sible for historical GHG emissions and have the greatest capacity

to act.

Thus, the Convention makes few demands on the much

less responsible and usually much less capable developing coun-

tries. The exclusion of developing countries became one of the

most contentious issues before and during the Kyoto conference

(and remains so), especially because the United States insisted

that developing countries make “meaningful” contributions to

future GHG reduction efforts.

These U.S. demands appear to

contradict the CBDR principle.

OMMON BUT

IFFERENTIATED

ESPONSIBILITY AND

LIMATE

HANGE

As a nascent principle of international environmental law,

“common but differentiated responsibility” evolved from the no-

tion of the “common heritage of mankind.” The latter concept

gained stature in the United Nations Convention on the Law of

the Sea,

as well as the international designation of certain areas

See FCCC, supra note 1, arts. 4, 17, 31 I.L.M. at 855-59, 869.

See Review of the Implementation of the Convention and of Decisions of

the First Session of the Conference of the Parties, U.N. Framework Convention

on Climate Change Conference of the Parties, 2d Sess., Agenda Item 5, at 3,

U.N. Doc. FCCC/CP/1996/L.17 (1996).

See FCCC, supra note 1, pmbl. & arts. 3-4, 31 I.L.M. at 851-56.

See id. pmbl., 31 I.L.M. at 851 (noting, inter alia, that “the largest share of

historical and current global emissions of greenhouse gases has originated in

developed countries”).

See discussion infra Parts I.B-C, II.A-B.

United Nations Convention on the Law of the Sea, opened for signature

Dec. 10, 1982, 21 I.L.M. 1261. This concept dates to the 1950s and was also

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 29

(e.g., Antarctica and the deep seabed) and resources (e.g.,

whales) as “common interests” of humankind.

Bearing in mind

that humans depend on a healthy climate for their survival, the

General Assembly went further by recognizing the earth’s cli-

mate as a “common concern” of humankind.

This implicates

not only the need for international cooperation to protect human

interests, but also a “certain higher status inasmuch as it empha-

sizes the potential dangers underlying the problem of global

warming and ozone depletion [and suggests] that international

governance regarding those ‘concerns’ is not only necessary or

desired but rather essential for the survival of humankind.”

Insofar as the climate is of such crucial “common concern”

to humankind, it follows that there is a responsibility on the part

of countries to protect it. This begs the question of who is re-

sponsible for climate pollution. The answer is a function of each

country’s historical responsibility for the problem, its level of

economic development, and its capability to act. This was sug-

gested by Principle 23 of the 1972 Stockholm Declaration, which

states that it is essential to consider “the extent of the applicabil-

ity of standards which are valid for the most advanced countries

but which may be inappropriate and of unwarranted social cost

for developing countries.”

The CBDR principle is described succinctly in Principle 7 of

the Rio Declaration on Environment and Development:

integrated into the 1979 Moon Agreement. See Agreement Governing the Ac-

tivities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, 18

I.L.M. 1434. See generally Frank Biermann, “Common Concern of Human-

kind:” The Emergence of a New Concept of International Environmental Law,

34 A

RCHIV DES

OLKERRECHTS

426 (1996).

See Biermann, supra note 10, passim (providing a more detailed discus-

sion). Cf. Antarctic Treaty, opened for signature Dec. 1, 1959, pmbl., 12 U.S.T.

794, 795, 402 U.N.T.S. 71, 74 (entered into force June 23, 1961); International

Convention for the Regulation of Whaling, Dec. 2, 1946, pmbl., 161 U.N.T.S.

72; G.A. Res. 2574, Question of the Reservation Exclusively for Peaceful Pur-

oses of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying

the High Seas Beyond the Limits of the Present National Jurisdictions, and the

Use of Their Resources in the Interests of Mankind, U.N. GAOR, 24th Sess.,

Supp. No. 30, at 10, U.N. Doc. A/7630 (1969), reprinted in 9 I.L.M. 419, 422.

See Biermann, supra note 10, at 431.

Id.

Declaration of the United Nations Conference on the Human Environ-

ment, June 16, 1972, princ. 23, 11 I.L.M. 1416, 1420 (Stockholm Declaration).

United Nations Conference on Environment and Development: The Rio

Declaration on Environment and Development, June 13, 1992, 31 I.L.M. 874

[hereinafter Rio Declaration].

30 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

States shall cooperate in a spirit of global partnership to con-

serve, 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 ac-

knowledge the responsibility that they bear in the interna-

tional 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.

According to this principle, while all countries are responsible for

global environmental problems (e.g., global warming and strato-

spheric ozone depletion), some countries are more responsible

than others. This principle was implicit in the 1987 Montreal

Protocol on Substances that Deplete the Ozone Layer,

and it

has been recognized in other important international undertak-

ings.

More to the point, while all countries must join in efforts

to reduce emissions of greenhouse gases that contribute to cli-

mate change, the developed countries are required by the Cli-

mate Convention to take the lead.

A. The Framework Convention on Climate Change

Climate change is caused, at least in part, by anthropogenic

sources of various greenhouse gases, especially carbon dioxide,

which comes from the burning of fossil fuels.

All countries

could suffer from climate change, although it is likely that poor

countries will suffer most, due to their vulnerable geographies

and economies.

In addition, it is the economically developed

Id. princ. 7, 31 I.L.M. at 877.

Montreal Protocol on Substances That Deplete the Ozone Layer, Sept.

16, 1987, 26 I.L.M. 1541 (entered into force Jan. 1, 1989).

The principle of common but differentiated responsibility has been ac-

knowledged by, inter alia, the U.N. General Assembly in G.A. Res. 228, U.N.

GAOR, 44th Sess., Supp. No. 49, at 152, U.N. Doc. A/44/49 (1989), and several

climate-related meetings, including the Second World Climate Conference,

meetings of the Preparatory Committee of the United Nations Conference on

Environment and Development, the Toronto Conference Statement, the Hague

Declaration, and the Noordwijk Declaration. See Philippe Sands, The “Green-

ing” of International Law: Emerging Principles and Rules, 1 I

. J. G

LOBAL

EGAL

TUD

. 293, 295-96 (1994).

See C

LIMATE

HANGE

1995: T

CIENCE OF

LIMATE

HANGE

(J.T.

Houghton et al. eds., 1996).

See C

LIMATE

HANGE

1995: I

MPACTS

, A

DAPTATIONS AND

ITIGATION

LIMATE

HANGE

(Robert T. Watson, et al. eds., 1996); O

FFICE OF

LOBAL

NTEGRATED

NVTL

. H

EALTH

, W

ORLD

EALTH

., C

LIMATE

HANGE AND

UMAN

EALTH

(1996); Intergovernmental Panel on Climate Change, Sum-

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 31

countries of the so-called global North that have generated the

most GHGs since the advent of the Industrial Revolution, and

they have thereby beneﬁted from using the global atmosphere as

a sink for the harmful by-products of their economic develop-

ment.

During the negotiations for the Climate Convention, de-

veloping countries were uniﬁed in emphasizing the historical

responsibility of developed countries for climate change.

They

agreed to participate in the climate negotiations only on the con-

dition that they not be required to accept any substantial com-

mitments of their own.

The developed countries remain the largest sources of

greenhouse gases, but the developing countries are expected to

overtake them in coming decades.

The United States currently

produces more GHGs than any other country, but China is cur-

rently in second place and will rival the United States for output

within a generation.

Thus, it is essential that the large develop-

ing countries eventually join in limiting their greenhouse gases.

The ﬁrst basic principle of the Climate Convention, Article

3(1), states:

The Parties should protect the climate system for the ben-

eﬁt of present and future generations of humankind, on the

basis of equity and in accordance with their common but dif-

ferentiated responsibilities and respective capabilities. Ac-

cordingly, the developed country Parties should take the lead

in combating climate change and the adverse effects thereof.

mary for Policymakers—The Regional Impacts of Climate Change: An Assess-

ment of Vulnerability (visited Nov. 10, 1998) <http://www.usgcrp.gov/ipcc/html/

RISPM.html>.

See C

LIVE

ONTING

, A G

REEN

ISTORY OF THE

ORLD

387-92, 405-06

(1991).

See Delphine Borione & Jean Ripert, Exercising Common but Differenti-

ated Responsibility, in N

EGOTIATING

LIMATE

HANGE

77, 83-84 (Irving M.

Mintzer & J. Amber Leonard eds., 1994).

See id.

See I

NTERNATIONAL

NERGY

GENCY

, W

ORLD

NERGY

UTLOOK

2-3

(1995).

See W

ORLD

ESOURCES

NST

ET AL

., W

ORLD

ESOURCES

315-25 (1996);

ee also I

NTERNATIONAL

NERGY

GENCY

, supra note 24, at 2-3.

FCCC, supra note 1, art. 3(1), 31 I.L.M. at 854. Speciﬁc commitments to

limit GHG emissions apply to Organization for Economic Cooperation and De-

velopment (OECD) countries (except Mexico, which joined in 1994) and twelve

Eastern European and former Soviet “economies in transition.” See FCCC,

upra note 1, Annex I, 31 I.L.M. at 872. The poorest countries of the world are

excluded from commitments, but so too are South Korea, Singapore, Saudi

Arabia, and similarly “less developed”—but hardly poor—countries. See Bonn

32 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

The Climate Convention recognizes that all countries are re-

sponsible for climate change and should endeavor to limit the

pollution that causes it.

However, following the CBDR princi-

ple, the treaty does not require developing countries to reduce

their greenhouse gases. It instead requires the developed coun-

tries to take the “lead in modifying longer-term trends in anthro-

pogenic emissions [of greenhouse gases] consistent with the

objective of the Convention.”

Thus, there is a double standard

built into the Climate Convention—a double standard that is

meant to achieve the Convention’s objective of reducing GHGs

to manageable levels in ways that are both effective and fair.

would be unfair to expect developing countries to limit their eco-

nomic development when wealthy countries are most responsible

for present concentrations of atmospheric greenhouse gases and

the expected consequences of this pollution for the global cli-

mate in the next century.

B. The Berlin Mandate

The CBDR principle was reafﬁrmed in 1995 at the ﬁrst con-

ference of the FCCC parties in Berlin. Countries agreed to the

“Berlin Mandate,” whereby developed countries pledged to act

ﬁrst to reduce their GHG emissions before requiring developing

to Kyoto: The Administration’s Position on the Climate Change Treaty, Hearing

Before the House Comm. on Int’l Relations, 105th Cong. 10 (1997) [hereinafter

Bonn to Kyoto] (statement of Timothy Wirth, Under Secretary of State for

Global Affairs). The United States wanted the CBDR principle to be extended

to countries within the non-Annex I (developing countries) group. Under such

a formula, the poorest countries would remain exempt from commitments, but

the relatively afﬂuent developing countries and the largest GHG emitters

would agree to emissions limitations. See Global Climate Negotiations: Obliga-

tions of Developed and Developing Countries, Hearings Before the House

Comm. on Int’l Relations, 105th Cong. 63 (1997) [hereinafter Global Climate

Negotiations] (statement of Timothy Wirth, Under Secretary of State for Global

Affairs).

See FCCC, supra note 1, art. 3, 31 I.L.M. at 854-55.

Id. art. 4(2)(a), 31 I.L.M. at 856.

See Paul G. Harris, Considerations of Equity and International Environ-

mental Institutions, 5 E

NVTL

. P

. 274, 291-94 (1996).

On the notions of fairness and equity in the context of climate change and

other international environmental issues, see, e.g., C

LIMATE

HANGE

1995:

CONOMIC AND

OCIAL

IMENSIONS

ch. 3 (James P. Bruce et al. eds., 1996);

QUITY AND

OCIAL

ONSIDERATIONS

ELATED TO

LIMATE

HANGE

(Rich-

ard Samson Odingo et al. eds., 1994); Paul G. Harris, Afﬂuence, Poverty, and

Ecology: Obligation, International Relations, and Sustainable Development, 2

THICS

& E

’

121, 129-30 (1997); Paul G. Harris, Environment, History and

International Justice, 40 J. I

’

TUD

., July 1997, at 1.

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 33

countries to do so.

The Berlin Mandate declares that the pro-

cess of implementing the Climate Convention shall be guided,

inter alia, by the CBDR principle.

It reminds parties that they

are required to consider the special needs of the developing

countries and that “the largest share of historical and current

global emissions of greenhouse gases has originated in developed

countries, that the per capita emissions in developing countries

are still relatively low and that the share of global emissions

originating in developing countries will grow to meet their social

and development needs.”

It goes on to state: “[T]he global na-

ture of climate change calls for the widest possible cooperation

by all countries and their participation in an effective and appro-

priate international response, in accordance with their common

but differentiated responsibilities and respective capabilities and

their social and economic conditions.”

Clearly, negotiations for the Kyoto Protocol between 1995

and 1997 were premised on the CBDR principle. The United

States, along with other developed countries party to the Con-

vention, accepted this standard because they knew developing

countries would not—and in many cases could not—limit their

emissions otherwise.

To many observers, however, the U.S.

policy toward common but differentiated responsibility and cli-

mate change appeared to shift in the months before the Kyoto

gathering. Indeed, the common interpretation was that the

United States had abrogated its responsibility with regard to the

CBDR principle.

C. The Kyoto Protocol

Throughout the international negotiations on a protocol to

the Climate Convention, developing countries consistently de-

clared that they would not agree to any limitations (least of all

See Report of the Conference of the Parties on its First Session, Held at

Berlin from March to 7 April 1995, U.N. Framework Convention on Climate

Change Conference of the Parties, 1st Sess., at 1, U.N. Doc. FCCC/CP/1995/7/

Add.1 (1995).

See id. art. I(1)(a), at 4 (quoting Article 3(1) of the Climate Convention).

Id. art. I(1)(d), at 5.

Id. art. I(1)(e), at 5.

Cf. Group of Seven Industrialized Countries (G-7) and Russia, Final

Communiqu´e of the Denver Summit of the Eight, ¶¶ 14-17 (June 22, 1997)

<http://sung7.univ-lyon2.fr/toronto/denver/g8ﬁnal.htm>.

This was evident in press reports. See, e.g., William K. Stevens, Green-

house Gas Issue: Haggling over Fairness, N.Y. T

IMES

, Nov. 30, 1997, § 1, at 6.

34 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

reductions) in their GHG emissions until the developed countries

substantially reduced theirs.

In short, those responsible for the

problem—the developed countries, particularly the United

States—would have to agree to binding limitations on their own

greenhouse gas emissions before they could rightfully expect the

poor countries to do likewise. The stiff resolve of the developing

countries was further demonstrated by a comment from one of

their delegates at the October 1997 climate change talks in Bonn,

made in response to President Clinton’s announcement of the

U.S. position that same month (which called on developing coun-

tries to take on new commitments for reducing their greenhouse

gases): “[N]o protocol is better than a protocol with new devel-

oping country commitments.”

The developing countries acted on these sentiments in Ky-

oto, vetoing any language in the Protocol that would call on them

to make even voluntary commitments to limit their emissions of

greenhouse gases.

Accordingly, the Kyoto Protocol of Decem-

ber 10, 1997

requires developed countries to reduce their aggre-

gate emissions of greenhouse gases by ﬁve percent below 1990

levels by 2012.

The United States agreed to reduce its emis-

sions by seven percent, the Europeans by eight, and the Japanese

by six.

A handful of developed countries, such as Australia,

were allowed to increase their emissions.

Conforming to the Climate Convention’s provisions for the

CBDR principle and speciﬁcally reafﬁrming the Berlin Mandate,

the Kyoto Protocol does not require the developing countries to

take on new commitments to limit their GHG emissions. Indeed,

the Protocol is devoid of references to commitments of develop-

ing countries.

Rather, all of its provisions apply to the devel-

See After Kyoto, New Round of Battle Coming Up, J. G

ROUP

77 (Sept.-

Nov. 1997) <http://www.g77.org/Journal/sepnov97/06.htm>.

Paola Bettelli et al., Highlights from the Meeting of the FCCC Subsidiary

Bodies, 12 E

ARTH

EGOTIATIONS

ULL

. 1, ¶ 16 (Oct. 24, 1997) <http://www.

iisd.ca/linkages/download/asc/enb1260e.txt> (on ﬁle with author).

See Paola Bettelli et al., Report of the Third Conference of the Parties to

the United Nations Framework Convention on Climate Change: 1-11 December

1997, 12 E

ARTH

EGOTIATIONS

ULL

. 1, ¶ 74 (Dec. 13, 1997) <http://www.

iisd.ca/linkages/download/asc/enb1276e.txt> (on ﬁle with author).

Kyoto Protocol to the United Nations Framework Convention on Climate

Change, Dec. 10, 1997, 37 I.L.M. 22 [hereinafter Kyoto Protocol].

See id. art. 3(1), 37 I.L.M. at 33.

See id. Annex B, 37 I.L.M. at 43.

See id.

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 35

oped “Annex I” countries. In Article 10, the Protocol explicitly

reafﬁrms the CBDR principle, stating that all parties must take

into account “their common but differentiated responsibilities

and their speciﬁc national and regional development priorities,

objectives, and circumstances, without introducing any new com-

mitments for Parties not included in Annex I [i.e., the developing

countries].”

OMMON BUT

IFFERENTIATED

ESPONSIBILITY FOR

LIMATE

HANGE AND THE

U.S. G

OVERNMENT

The U.S. government

has consistently supported common

but differentiated responsibility in the context of climate change,

despite contrary interpretations in most press reports. It is true

that the U.S. position on CBDR differs somewhat from that of

other countries, especially if one is concerned with rhetoric from

Congress and strict interpretations of proposed treaty wording.

This was evident during the months before Kyoto when the Clin-

ton Administration called for “new” and “meaningful” commit-

Id. art. 10, 37 I.L.M. at 36-37. It bears noting that the CBDR principle is

not tied to the distinction between developed and developing countries: the

principle can be invoked even among developed countries. For example, while

both the United States and Canada must act before the developing countries,

the United States must reduce its emissions more than Canada. See id. Annex

B, 37 I.L.M. at 43. On the other hand, the United States, far and away the

largest source of greenhouse gases and the wealthiest economy in the world, is

required to reduce its emissions less than the European Union. See id. This is

so despite the fact that E.U. citizens produce fewer greenhouse gases in the

aggregate and especially less per capita than do the Americans. See W

ORLD

ESOURCES

NST

ET AL

., supra note 25, at 319. Most developed countries are

required to reduce their GHG emissions, but Australia (for example) is permit-

ted an eight percent increase. See Kyoto Protocol, supra note 40, Annex B, 37

I.L.M. at 43. This differentiation is ostensibly based on national circumstances,

but in reality it was largely a function of political bargaining in the Kyoto

process.

References in this Article to “the U.S. government” mean the Clinton

Administration (and the applicable Executive agencies) and Congress, notably

the Senate, which must ratify international treaties signed by the President. See

U.S. C

ONST

. art. II, § 2, cl. 2.

The greatest divergences from the U.S. position have been advanced by

many of the developing countries, notably China, which do not want any treaty

references to new developing country commitments. See Bonn to Kyoto, supra

note 26, at 7 (statement of Timothy Wirth, Under Secretary of State for Global

Affairs).

36 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

ments from developing countries in the Protocol.

This position

was highly contentious, in large measure because the developing

countries feared that any language calling for new commitments

would set dangerous precedents.

Additionally, these develop-

ing countries may have felt that the U.S. position would be im-

possible to sell to their domestic constituencies, regardless of the

wording and even if this position permitted increased GHG emis-

sions on their part.

However, it would be wrong to say that the

United States expected developing countries to take on “com-

mon” responsibilities instead of “common but differentiated” re-

sponsibilities. Recall that the U.S. government joined the 1995

Berlin Mandate, thereby reafﬁrming the CBDR provisions of the

Climate Convention. Even Congress, particularly the Senate, de-

clared its support for CBDR, as indicated by extensive debate on

the Senate ﬂoor.

In substance, the U.S. government accepted

and actively promoted the CBDR principle in the climate change

negotiations.

A. The U.S. Senate’s Byrd-Hagel Resolution

In July 1997, by a vote of 95-0, the U.S. Senate adopted Sen-

ate Resolution 98 (SR-98), the so-called Byrd-Hagel Resolu-

tion.

SR-98 stated, inter alia, that the United States should not

be a signatory to any protocol to, or other agreement regarding,

the Climate Convention that would

(A) mandate new commitments to limit or reduce greenhouse

gas emissions for the Annex I [developed country] Parties, un-

See White House, Comprehensive Framework for Effective, Sensible Ac-

tion (Oct. 22, 1997) <http://www.whitehouse.gov/Initiatives/Climate/frame-

work-plain.html>; President William J. Clinton, Remarks by the President on

Global Climate Change at the National Geographic Society (Oct. 22, 1997)

[hereinafter Remarks] reprinted in Bonn to Kyoto, supra note 26, at 19 (tran-

script available at <http://www.whitehouse.gov/Initiatives/Climate/1997 1022-

6127.html>).

See The Third Conference of the Parties to the UN Framework Convention

on Climate Change: 1 December 1997, 12 E

ARTH

EGOTIATIONS

ULL

. 1, ¶ 18

(Dec. 2, 1997) <http://www.iisd.ca/linkages/download/asc/enbl1268e.txt> (on

ﬁle with author).

See generally Elizabeth P. Barratt-Brown, Building a Monitoring and

Compliance Regime Under the Montreal Protocol, 16 Y

ALE

J. I

’

L. 519, 545-

46 (1991).

See infra Part II.B.

S. Res. 98, 105th Cong., 143 C

ONG

. R

. S8138-39 (daily ed. July 25,

1997). For a transcript of the Senate ﬂoor debate on the Byrd-Hagel Resolu-

tion, see id. at S8113-38.

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 37

less the protocol or other agreement also mandates new spe-

ciﬁc scheduled commitments to limit or reduce greenhouse gas

emissions for Developing Country Parties within the same

compliance period, or

(B) would result in serious harm to the economy of the

United States . . . .

The Byrd-Hagel Resolution reﬂected concerns about the ef-

fects of any climate treaty on the U.S. economy and distrust

among both Republican and Democratic senators of an agree-

ment that would exclude the developing countries. On a ﬁrst

reading, the Resolution sounds ominous to those concerned

about CBDR and international fairness, and observers could be

forgiven for interpreting it as a “treaty killer.” But such an inter-

pretation would miss the Resolution’s message. Rather than fo-

cusing on the rhetoric of the most outspoken anti-Climate

Convention senators, it is instructive to look at the meaning of

the Resolution made explicit by senators in ﬂoor debate, as well

as the interpretation of the Resolution adopted by the Clinton

Administration in its public statements. Such an examination

shows that the Byrd-Hagel Resolution was based fundamentally

on conceptions of CBDR and notions of fair and equitable inter-

national burden-sharing.

B. Senate Debate and Common but Differentiated

Responsibility

The Senate’s concerns about developing country participa-

tion in the FCCC process were at least twofold. First, rightly or

wrongly, there was a concern that developing countries would

have an unfair economic advantage because they would not be

facing the same restrictions on economic output as the United

States.

Gross National Product is, for better or worse, still

largely proportional to energy use and thus to GHG emissions

(especially carbon dioxide).

There was also the concern that

U.S. manufacturing, and hence U.S. jobs, would move abroad to

take advantage of relaxed environmental regulations there.

Id. at S8138.

See id. at S8115-16 (statement of Sen. Hagel); Global Climate Negotia-

tions, supra note 26, at 4-5 (statement of Rep. Rohrabacher).

See Peter Passel, Trading on the Pollution Exchange, N.Y. T

IMES

, Oct. 24,

1997, at D1.

See 143 C

ONG

. R

. at S8115 (daily ed. July 25, 1997) (statement of Sen.

Hagel).

38 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

Second, the Senate believed that an effective climate treaty abso-

lutely required developing country participation.

During ﬂoor

debate on the Resolution, senator after senator cited the future

emissions of China as justiﬁcation for their position.

Some sen-

ators pointed out that by 2015 China will surpass the United

States to become the world’s leading producer of GHGs and

noted that other large developing countries were rapidly increas-

ing their emissions as well.

Perhaps the greatest confusion about the Byrd-Hagel Reso-

lution concerns its requirement that any climate agreement

“mandate[ ] new speciﬁc scheduled commitments to limit or re-

duce greenhouse gas emissions for Developing Country Parties

within the same compliance period” as the United States and

other developed country parties.

During ﬂoor debate, several

senators went to great lengths to establish the precise interpreta-

tion of this provision. Most senators accepted that the U.S. was

more responsible for the problem, that the developing coun-

tries—while they must undertake “speciﬁc scheduled commit-

ments” in the “same compliance period”—should not be

required to undertake the same commitments as the developed

countries, and that the poorest and least capable countries should

have the least stringent requirements (or none at all) placed

upon them.

Indeed, one could readily interpret the Resolution

as accepting that many developing countries would increase their

GHG emissions but that those increases ought to be codiﬁed in

the agreement. Indeed, this was the U.S. negotiating position at

the Kyoto conference.

The comments of several senators readily demonstrate that

the U.S. Senate accepted the fundamental provisions of the Cli-

See id. at S8117 (statement of Sen. Byrd); id. at S8122 (statement of Sen.

Roberts). This is based on the widespread assumption, backed by scientists,

that there is a climate change problem. It is important to note, however, that

some U.S. legislators in both the Senate and House of Representatives still

doubt that climate change is a problem at all (or at least that is what they have

said publicly). See Global Climate Negotiations, supra note 26, at 4-5 (state-

ment of Rep. Rohrabacher).

See 143 C

ONG

. R

. at S8122 (daily ed. July 25, 1997) (statement of Sen.

Roberts); id. at S8124 (statement of Sen. Lott).

See id. at S8126 (statement of Sen. Kyl); id. at S8127 (statement of Sen.

Thomas).

Id. at S8138.

See id. at S8113-39.

See Bettelli et al., supra note 39, ¶ 210.

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 39

mate Convention and the CBDR principle. Many legislators rec-

ognized that the United States was the largest part of the climate

change problem and that the U.S. should act to reduce its GHG

emissions while assisting developing countries with their actions.

For example, in a statement on the Senate ﬂoor, Senator

Patty Murray said:

Regarding the developed-developing nation debate, I be-

lieve it is also clear that we developed nations have historically

emitted more greenhouse gases per capita than have develop-

ing countries. In addition, we are economically more able to

absorb whatever increased costs occur based on the need to

reduce emissions. Therefore, we should assist our neighbors

through technology transfer, economic assistance, and joint

ventures in meeting whatever emissions goals are

established.

Senator Robert Byrd, primary co-sponsor of SR-98, inter-

preted the developing country provisions of the Resolution as es-

sentially ad hoc obligations:

Now, does this mean that the Senate is insisting on com-

mitments to identical levels of emissions among all the par-

ties? Certainly not. The emissions limitations goals, to be fair,

should be based on a country’s level of development. The pur-

pose is not to choke off Mexico’s development or China’s

development.

Similarly, Senator John Kerry offered a subjective interpre-

tation of the seemingly objective phrase, “same compliance

period”:

[I]t means essentially that we want countries to begin to re-

duce while we are reducing, we want them to engage in a rea-

sonable schedule while we are engaged in a reasonable

schedule, but that if a developing nation needs more time to

get a plan in place or needs to have more time to raise the

funds and be able to purchase the technology and do the

things necessary, that as long as there is a good-faith track on

which they are proceeding, that if it took them a number of

years . . . to reach a particular goal, that certainly means within

the same compliance period . . . . [I]t is reasonable to permit

some ﬂexibility in the targets and timing of compliance while

at the same time requiring all countries to agree to make a

143 C

ONG

. R

. at S8124 (daily ed. July 25, 1997) (statement of Sen.

Murray).

Id. at S8117 (statement of Sen. Byrd).

40 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

legally binding commitment by a date certain. That is reason-

able. But I think most of my colleagues would agree that if

some country simply doesn’t have the capacity, the plan, the

money, or the technology, it may be they have to take a little

more time and we should want to be reasonable in helping

them to do that because the goal here is to get everybody to

participate, not to create a divisiveness that winds up with do-

ing nothing.

Senator Max Baucus reiterated the need for the developing

countries to have the same compliance period, adding: “But

since developing and developed nations are starting from differ-

ent places, it makes sense to require different targets. Here

again, the language crafted by Senator Byrd helps. It does not

specify that developed and developing countries meet the same

targets and timetables.”

Senator Robert Kerrey echoed these remarks, explaining

that the Senate Resolution would allow developing countries

“appropriate” ﬂexibility in their commitments to abate GHG

emissions.

He added that it was the developed countries who

were “in a better position to implement emissions-curbing activi-

ties and technologies at low cost and impact, and to also transfer

these abilities and technologies to developing countries and to

aid in their economic advancement in a way that tempers emis-

sions growth.”

Senator Joseph Lieberman reinforced these interpretations

in the following statement:

New commitments by developing countries regarding

their performance under the [FCCC], of course, need to be

consistent with their historic responsibility for the problem, as

well as their current capabilities. The ground rules for the ne-

gotiations—the Berlin [M]andate—recognize these common,

but differentiated responsibilities.

It is clear that the Berlin [M]andate can be carried out in

a way that is consistent with Senate Resolution 98. The reso-

lution says that developing countries can start with a commit-

ment that is lower relative to the industrialized countries at

ﬁrst. . . .

Id. at S8120 (statement of Sen. Kerry).

Id. at S8125 (statement of Sen. Baucus).

Id. at S8128 (statement of Sen. Kerrey).

Id.

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 41

Senate Resolution 98 says that it is entirely appropriate

for industrialized countries to start making quantiﬁed emis-

sions reductions ﬁrst . . . .

To put to rest confusion about the interpretation of the de-

veloping country provisions of the Byrd-Hagel Resolution, Sena-

tor Jeff Bingaman entered a colloquy with Senator Byrd:

[Mr. Bingaman:] I was greatly encouraged by the remarks on

this issue made by the sponsor of this resolution . . . . [who said

that] countries at different levels of development should make

unique and binding commitments of a pace and kind consis-

tent with their industrialization . . . [and] consistent with a fair

sharing of any burden. . . .

. . . Would it be correct to interpret the use of the words

“new commitments” in both phrases as suggesting that the

United States should not be a signatory to any protocol unless

Annex I Parties and Developing Country Parties agree to

identical commitments?

Mr. Byrd: That would not be a correct interpretation of the

resolution. . . . In [the committee hearings for SR-98,] I made

the following statement and deliberately repeated it for em-

phasis: “Finally, while countries have different levels of devel-

opment, each must make unique and binding commitments of

a pace and kind consistent with their industrialization.” I be-

lieve that the developing world must agree in Kyoto to binding

targets and commitments that would begin at the same time as

the developed world in as aggressive and effective a schedule

as possible given the gravity of the problem and the need for a

fair sharing of the burden. That is what the resolution means.

The resolution should not be interpreted as a call for identical

commitments between Annex I Parties and Developing Coun-

try Parties.

To be sure, it would be much easier for international negoti-

ators and for the Clinton Administration if the Senate had never

passed the Byrd-Hagel Resolution. One might even assume that

some senators were not interested in international fairness; they

might be happy to see developing countries subjected to immedi-

ate mandated reductions in their greenhouse gases. Neverthe-

less, as the senators’ statements show, the Resolution was not

what it might appear to be. That is, SR-98 was not a renunciation

Id. at S8129 (statement of Sen. Lieberman).

Id. at S8131 (statements of Sen. Bingaman & Sen. Byrd).

42 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

of the CBDR principle but rather an alternative interpretation of

it, albeit a less robust one than the developing countries wanted.

C. Common but Differentiated Responsibility and

the Clinton Administration

Responding to the Byrd-Hagel Resolution, and bearing in

mind the increasing emissions of greenhouse gases from develop-

ing countries, President Clinton announced on October 22, 1997

his Administration’s negotiating position for the Kyoto confer-

ence.

He called on the industrialized countries to commit to a

binding and “realistic” target of returning emissions of GHGs to

1990 levels between 2008 and 2012, and of reducing emissions

below 1990 levels between 2012 and 2017.

President Clinton

declared that “both industrialized and developing countries must

participate in meeting the challenge of climate change.”

Clin-

ton added that “[d]eveloping countries have an opportunity to

chart a different energy future consistent with their growth po-

tential and their legitimate economic aspirations.”

He said that

“key” developing countries (those that are the wealthiest and the

largest emitters among the developing parties, including China,

India, and Mexico) must take “meaningful” action, but that the

“industrialized world must lead.”

Thus, meaningful participa-

tion of key developing countries did not mean equal

participation.

Afﬁrming that the U.S. position was to support, not harm,

economies in the developing world, President Clinton said that

he would not propose changes to the Climate Convention that

would adversely affect the growth of developing countries, which

feared emissions reductions might penalize them, because their

industries are often less pollution-conscious.

The President

said that the United States wanted to help the developing nations

grow as much as they would without a treaty, but using a “differ-

ent energy future than the one we charted in the past when we

See Remarks, supra note 48, ¶¶ 15-30.

See President Clinton’s Climate Change Proposal (Oct. 22, 1997) <http://

www.whitehouse.gov/Initiatives/Climate/proposal-plain.html>.

Remarks, supra note 48, ¶ 19.

Id. ¶ 20.

Id. ¶ 19.

See Remarks by President Clinton and President Cardoso at Signing of

Declaration on Education (Oct. 14, 1997) <http://www.pub.whitehouse.gov/uri-

res/I2R?urn:pdi://oma.eop.gov.us/1997/10/20/1.text.1>.

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 43

were at the same stage of development.”

In his October 22 an-

nouncement of the U.S. Kyoto negotiating position, Clinton

again acknowledged the special U.S. responsibility for the prob-

lem: “The United States has less than ﬁve percent of the world’s

people, enjoys 22 percent of the world’s wealth, but emits more

than 25 percent of the world’s greenhouse gases.”

In Senate testimony, then-Under Secretary of State for

Global Affairs Timothy Wirth described the U.S. position on

many of the most contentious questions of equity and fairness in

the context of climate change.

Despite facing hostile questions

from some senators, his description of U.S. policy accommodated

the CBDR principle, especially with regard to U.S. expectations

of the developing countries.

Wirth noted that the developing

countries would have to be part of the treaty, because their GHG

emissions were increasing rapidly.

At the same time, however,

he pointed out that the developing countries’ per capita emis-

sions would continue to remain “far below our own,”

and he

defended the actions that the developing countries had already

taken to reduce their GHG emissions despite, as he made clear,

their relative poverty.

Wirth said that the United States “must

determine what we ask of developing countries with realistic and

fair appreciation of how they see the world as well. The level and

timing of each country’s commitments must be commensurate

with its national abilities and level of development. Balance and

fairness must be maintained.”

His remarks, like those of Vice

Id.

Remarks, supra note 48, ¶ 15.

See Hearings on Global Climate Change Before the Subcomm. on Int’l

Econ. Policy, Export and Trade Promotion of the Senate Foreign Relations

Comm., 105th Cong. (1997) [hereinafter Senate Subcomm. Climate Hearings]

(statement of Timothy Wirth, Under Secretary of State for Global Affairs),

available in 1997 WL 631222.

See id. at *14.

See id.

Id. at *9.

See id. at *11-12.

Id. at *16. As one solution to the question of developing country partici-

pation, the Clinton Administration proposed that the most afﬂuent, non-Annex

I, developing countries (e.g., South Korea, Singapore, Saudi Arabia, and the

like) be placed in a new “Annex B” with different—and more stringent—com-

mitments than the poor developing countries. See Global Climate Negotiations,

upra note 26, at 63 (statement of Timothy Wirth, Under Secretary of State for

Global Affairs).

44 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

President Gore

and other Administration ofﬁcials,

mirrored

the CBDR principle contained in the Climate Convention.

The phrasing of the Senate resolution (“limit or reduce”)

left room for the Clinton Administration to agree that develop-

ing countries should be able to increase their GHG emissions.

That is precisely what the United States diplomats proposed at

the Kyoto conference: American diplomats called for voluntary

commitments by developing countries (speciﬁcally excluding the

least developed among them) to “abate the increase” in their

emissions.

The U.S. diplomats said that developing country

See Vice President Al Gore, Press Conference at the United Nations

Comm. on Climate Change (Dec. 8, 1997) <http://www.state.gov/www/global/

oes/971208a_gore_cop.html>.

See Implications of the Kyoto Protocol on Climate Change, Hearing Before

the Senate Comm. on Foreign Relations, 105th Cong. 41 (1998) [hereinafter Im-

lications of Kyoto] (statement of Stuart E. Eizenstat, Under Secretary of State

for Econ., Bus. and Agric. Affairs). Therein Eizenstat said:

Some developing countries believe—wrongly—that the developed

world is asking them to limit their capacity to industrialize, reduce pov-

erty and raise their standard of living. . . .

. . . .

. . . In determining what developing countries ought to do, we should be

aware that the circumstances of developing countries vary widely, along a

kind of continuum. . . .

Any “one-size-ﬁts-all” approach to the “meaningful participation of

developing countries” and to satisfy the Byrd-Hagel Resolution is thus

unlikely to prevail. . . .

. . . .

Recognizing our “common but differentiated responsibilities and re-

spective capabilities” it will be necessary to develop an approach that pro-

vides for a meaningful global response to the threat of global warming,

while acknowledging the legitimate aspirations of developing countries to

achieve a better life for their peoples. . . .

Id. at 45-46.

Wirth subsequently left the Clinton Administration, some say because he

thought the Administration’s proposals for lowering U.S. GHG emissions did

not go far enough. See, e.g., John H. Cushman, Jr. & David E. Sanger, No

Simple Fight: The Forces That Shaped the Clinton Plan, N.Y. T

IMES

, Dec. 1,

1997, at 3.

See William K. Stevens, Global Warming Talks Open in Kyoto, N.Y.

IMES

, Dec. 2, 1997, at A10; see also U.S. Delegation to the 3rd Conference of

the Parties: Press Brieﬁng (Dec. 5, 1997) [hereinafter Press Brieﬁng] <http://

www.state.gov/www/global/oes/971205_cop.html>.

One U.S. delegate at Kyoto (Daniel Reifsnyder, U.S. Department of

State) told reporters at a news conference that “[w]e fully acknowledge that

[the developing countries] are going to grow as their needs for development,

you know—as they seek to develop. But what we’re looking for, I think, is an

effort to try to, if you will, abate the increase in those emissions . . . .” Press

Brieﬁng, supra note 88, ¶ 19. Another delegate (Robert Dixon, Director, U.S.

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 45

emissions targets could be growth targets and that such commit-

ments should not inhibit economic development in those coun-

tries.

In other words, the Clinton Administration wanted (and,

presumably, still wants) the large developing countries to plan

their future emissions and commit themselves to adhering to

those plans. The U.S. diplomats only wanted something—virtu-

ally anything—in the Protocol’s wording that would allow the

Administration to tell Congress that developing countries were

“limiting” their emissions in “meaningful” ways. Thus, the U.S.

position was not, as it was billed by almost everyone but the Clin-

ton Administration, an abrogation of the CBDR principle.

ONCLUSION

: F

ROM

YOTO TO

UENOS

IRES

—

AND

EYOND

The principle of common but differentiated responsibility

has been established in international environmental instruments

negotiated over the last few decades.

It is a recognition that all

countries are responsible for limiting damage to common global

environmental areas, but that the developed industrialized coun-

tries should take on much greater responsibility in preventing

and mitigating global pollution, and indeed in helping developing

countries in their own efforts to protect the global commons.

CBDR has moved from being a “soft” international legal princi-

ple (as in the Rio Declaration on Environment and Develop-

ment)

to a nascent but increasingly robust component of

international law (as demonstrated by its codiﬁcation in the

Framework Convention on Climate Change).

According to the

Climate Convention, developed countries are required to reduce

their emissions of greenhouse gases; the developing countries,

which are required to take some minor actions on behalf of the

global climate (e.g., creating inventories of their GHG emis-

sions),

are not required by the treaty to reduce their GHG

Initiative on Joint Implementation) said that “we are interested in developing

countries at least agreeing to a process by which they would come to accept

their own binding targets, even though those might be growth targets.” Id. ¶

32.

See id.; see also Bettelli et al., supra note 39, ¶ 210.

Cf. Biermann, supra note 10, at 426.

See id. at 432-65.

See Rio Declaration, supra note 15, princ. 7, 31 I.L.M. at 877.

See FCCC, supra note 1, art. 3(1), 31 I.L.M. at 854.

Even here the assumption is that they will receive assistance from the

developed countries in doing so. See id. art. 4(7), 31 I.L.M. at 858 (“The extent

to which developing country Parties will effectively implement their commit-

46 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

emissions. The Berlin Mandate and the recent Kyoto Protocol to

the Climate Convention reafﬁrmed this principle.

CBDR is not, in the U.S. interpretation, incompatible with

new “commitments” by some developing countries. What the

U.S. government wants is for the developing countries to plan

their GHG emissions increases and to adhere to those levels.

Bearing in mind provisions in the Climate Convention for ﬁnan-

cial assistance and technology transfer from the industrialized

countries and plans for more joint implementation projects, it is

probable that developing countries will bolster their economic

development and growth in the long term by undertaking such

commitments.

Developing countries have already taken many

steps to make themselves more energy efﬁcient.

Indeed, by do-

ing so, they are saving scarce capital and making themselves

more competitive vis-`a-vis the United States and other industrial-

ized countries.

This brief examination of the CBDR principle and the U.S.

position with regard to it and climate change suggests at least two

things. First, U.S. support for CBDR bodes well for the princi-

ple’s future in international environmental law and suggests that

the North-South cooperation essential to effective international

environmental cooperation need not suffer a setback on this

score. The U.S. government—both the Administration and Con-

gress—supports the basic principle of CBDR (despite a prefer-

ence that some developing countries, especially the most afﬂuent

ones and those with the largest economies, take on much greater

commitments).

The Senate made that support part of U.S. law

by ratifying the Climate Convention. Most importantly, as

demonstrated by the Senate debate, by statements from Presi-

ments under the Convention will depend on the effective implementation by

developed country Parties of their commitments under the Convention related

to ﬁnancial resources and transfer of technology. . . .”).

“Joint implementation” generally refers to projects undertaken jointly by

ﬁrms or governments of both developed and developing countries, usually

meaning that entities in developed countries undertake GHG emissions limita-

tions in developing countries at costs lower than they would incur were those

limitations implemented at home. There is an ongoing dispute over whether

developing countries beneﬁt from such programs. See Philippe Sands, P

RINCI-

PLES OF

NTERNATIONAL

NVIRONMENTAL

I: F

RAMEWORKS

, S

TANDARDS

AND

MPLEMENTATION

, 132-33 (1995).

See Senate Subcomm. Climate Hearings, supra note 79, at *11-12.

See, e.g., Implications of Kyoto, supra note 86, at 46 (statement of Stuart

E. Eizenstat, Under Secretary of State for Econ., Bus. and Agric. Affairs).

1999] COMMON BUT DIFFERENTIATED RESPONSIBILITY 47

dent Clinton and members of Executive agencies, and by the po-

sitions of U.S. diplomats in international negotiations, the United

States approaches questions of climate change commitments with

the underlying assumption that the essential character of the

CBDR principle should be upheld.

This is positive news. If the developing countries recognize

that the U.S. position is one of fundamental support for common

but differentiated responsibility, they are more likely to partici-

pate in efforts to protect the climate of the earth. The question is

whether diplomats can ﬁnd wording for a side agreement to the

Kyoto Protocol that meets the Senate’s requirement for those

countries to agree to “new speciﬁc scheduled commitments to

limit” their GHGs but that does not require those countries to

make near-term reductions or to sacriﬁce their economic devel-

opment goals. The latter is the stated objective of the Clinton

Administration and many Senators.

This leads to an important second point highlighted by this

situation: the U.S. position is actually an opportunity for climate

change negotiators as they prepare for future international delib-

erations.

100

At Kyoto, U.S. diplomats called on the developing

countries to agree to voluntary schedules for GHG emissions in-

creases (i.e., “limitations”).

101

This proposal, though rejected by

most developing countries at the time, could serve as the basis

for negotiation of a side agreement to the Kyoto Protocol.

An agreement along these lines would not place any binding

commitments on the developing countries; they would be free, if

they so choose, to focus on their economic growth and to do as

little as the United States did in the years following its ratiﬁca-

tion of the voluntary commitments in the Climate Convention.

However, such an agreement would place the largest and most

afﬂuent developing countries on a clearer path toward energy ef-

ﬁciency and GHG limitations. Such a path is essential if climate

change is to be addressed effectively in the long term. Since the

developing countries will suffer the greatest harm from future cli-

mate changes, they stand to beneﬁt the most from preventative

See id. at 45; 143 C

ONG

. R

. at S8117 (daily ed. July 25, 1997) (statement

of Sen. Byrd); id. at S8120 (statement of Sen. Kerry).

100

For details of the U.S. positions in the run-up to the November 1998 con-

ference of the parties in Buenos Aires, see Paul G. Harris, Les

Etats-Unis: Un

oueur Cl´e [Key Issues in U.S. Climate Change Policy: A Buenos Aires Preview],

39 L

IAISON

NERGY

RANCOPHONIE

11, 15 (1998).

101

See Press Brieﬁng, supra note 88, ¶ 18.

48 N.Y.U. ENVIRONMENTAL LAW JOURNAL [Volume 7

actions taken now. They will also beneﬁt from having energy-

efﬁcient industries and economies that will be more competitive

in the globalized free-market economy.

Building on the U.S. proposal at Kyoto, developing coun-

tries would reafﬁrm that they have “common” responsibilities to

address climate change, but their responsibilities would remain

ﬁrmly “differentiated” from those of the more responsible and

much more capable industrialized countries. The CBDR princi-

ple would remain a guiding norm in the international climate

protection regime. Such an agreement would also mean that the

Kyoto Protocol itself would stand a much better chance of being

ratiﬁed by the U.S. Senate and gaining Congressional funding.

While the United States will limit its GHG emissions even if it

never becomes a legal party to the Protocol, ratiﬁcation and Con-

gressional consent are essential if the U.S.—still the largest emit-

ter of greenhouse gases—is to take the major steps necessary to

substantially reduce its pollution of the earth’s atmosphere.