Rethinking the principle of common but differentiated responsibilities in climate change law and policy
Climate change has come to define human existence in the 21st century and beyond. The common but differentiated responsibilities (CBDR) principle is one of the normative pillars of international environmental law and the legal regime on climate change. However, the CBDR principle’s purpose and function in the climate change regime have come under scrutiny. In contention is the ethical basis of historical contribution and responsibility, one of the two-fold markers of differentiation. Literature on the CBDR principle’s relevance has been primarily shaped by realist theory. This approach neglects the historical antecedents of differentiation and the relevance of historical responsibility in framing the CBDR principle. It also obscures third world countries’ concerns regarding climate justice instead of elevating them. This thesis explores the contours of historical responsibility in the climate change regime using third world approaches to international law (TWAIL) as the main framing lens. I adopt an integrative literature review approach to analyse scholarly work on the CBDR principle and historical responsibility. The study seeks to answer the research question: to what extent does the historical responsibility concept influence the CBDR principle’s relevance to climate justice and climate change mitigation? The thesis finds that the CBDR principle is part of an attempt to reverse the difference dynamic which characterizes the colonial and post-colonial era in the development of international law. Nevertheless, the contestations surrounding historical responsibility in the climate change regime reveal the interest-driven positions among developed and developing countries, notably the United States of America and the BASIC group of industrializing third world countries. The thesis further finds that despite these interest driven positions, the CBDR principle’s metamorphosis damages the justice pillar of the climate change regime’s normative framework. Although the Paris Agreement regime has almost erased historical responsibility from its framing of the CBDR principle, its continued iv relevance is not diminished. In addition to the emerging discourse on post-growth theories, notably the concept of degrowth in developed countries, non-state actors are using litigation to highlight climate justice issues and propel mitigation action. The thesis contributes to the growing field of TWAIL scholarship in climate change law. It also informs a better understanding of the CBDR principle’s relevance by focusing on a hitherto underdeveloped third-world historical perspective. The study recommends that research on the third world position on climate change and mitigation should duly account for the pre-colonial and colonial influence on the development of international environmental law. A third-world sensitive analysis should go beyond merely linking differential treatment to calls for a new international economic order. It is also recommended that policymakers and state representatives involved in the negotiation process should consider the destructive effects of using constructive ambiguity, especially as a substitute for confronting difficult issues such as historical responsibility. Finally, the study recommends that sustained academic and civic engagement on the International Court of Justice’s role in shaping international law regarding climate change will help to prepare the court for adjudicating on climate change.
A thesis submitted in fulfilment of the requirement for the degree Doctor of Philosophy to the Faculty of Commerce, Law and Management, School of Law, University of the Witwatersrand, Johannesburg, 2021