The Asia-Pacific Partnership On Clean Development and Climate A Retreat From The Principle of Common But Differentiated Responsibilities

The Asia-Pacific Partnership on Clean Development
and Climate: A Retreat from the Principle of

Common but Differentiated Responsibilities?
Jeffrey McGee* and Dr. Ros Taplin**
The Asia-Pacific Partnership on Clean Development

and Climate (APP) was formed in July 2005
by China, India, Japan, South Korea, Australia
and the United States. Canada was accepted as
the seventh partner nation of the APP in October
2007. The APP is a soft-law technology cooperation agreement on climate change that contains no
international targets for greenhouse gas mitigation
or formal differentiation in responsibility between
developed and developing nations. The APP nations
claim the partnership is consistent with the United
Nations Framework Convention on Climate
Change (UNFCCC). This article analyzes the
founding documents and institutional structure of

the APP to determine whether it is consistent with
the key UNFCCC principle of common but differentiated responsibilities (CBDR). It is found
that the APP fails to support important retributive
and needs-based justice principles that are at the
heart of the UNFCCC conception of CBDR. In
weakening support for these justice principles the
APP also fails to support the intra-generational
equity aspects of sustainable development. The
claims of consistency between the APP and the
UNFCCC are therefore not justified.
Le Partenariat Asie-Pacifique sur le dveloppement

propre et le climat (PAP) a t mis sur pied en juillet
2005 par la Chine, lInde, le Japon, la Core du
Sud, lAustralie et les tats-Unis. Le Canada a t
accept en tant que septime partenaire en octobre
2007. Le PAP est un accord volontaire de coopration technologique sur les changements climatiques
qui ne contient aucun objectif international de
rduction des gaz effet de serre ou de diffrentiation formelle de responsabilit entre les pays dvelopps et les pays en voie de dveloppement. Les pays
du PAP maintiennent que le partenariat est compatible avec la Convention-cadre des Nations unies
sur les changements climatiques (CCNUCC). Cet
article analyse les documents fondateurs ainsi que

la structure institutionnelle du PAP afin de dterminer si ce dernier correspond au principe cl de la
CCNUCC des responsabilits communes mais
diffrencies (RCMD). On constate que le PAP
ne soutient pas dimportants principes de justice
commutative et de justice fonde sur les besoins
qui sont au cur de la notion des RCMD de la
CCNUCC. En amollissant le soutien de ces principes de justice, le PAP fait aussi dfaut de soutenir
les aspects du dveloppement durable qui traitent
dquit intragnrationnelle. Les propos faisant
tat dune cohrence entre le PAP et la CCNUCC
ne sont donc pas justifis.
Jeffrey McGee is a PhD candidate at the Graduate School of the Environment, Macquarie University,
in Sydney, Australia. He also holds the title of Lecturer at the University of Newcastle School of Law in
Callaghan, Australia. He may be reached at jeffrey.mcgee@newcastle.edu.au.
**
Ros Taplin is a professor at the Mirvac School of Sustainable Development, Bond University, in Gold
Coast, Australia. He may be reached at rtaplin@bond.edu.au.
Electronic copy available at: http://ssrn.com/abstract=2619368
1. INTRODUCTION
2. THE UNITED NATIONS CLIMATE REGIME AND THE ASIA-PACIFIC PARTNERSHIP
2.1 The UN Framework Convention on Climate Change
2.2 The Asia-Pacific Partnership on Clean Development and Climate
2.3 Claims of Consistency between the APP and UNFCCC
3. EQUITY AND NORMS
3.1 Equity and International Environmental Law
3.2 The Role of Norms in International Environmental Law Doctrine
4. COMMON BUT DIFFERENTIATED RESPONSIBILITIES
4.1 Description of CBDR
4.2 CBDR: Substantive Equity v. Economic Efficiency?
4.3 History of CBDR in International Environmental law
4.4 The CBDR Principle in the UNFCCC
5. COMPARING THE CBDR COMPATIBILITY OF THE UNFCCC AND APP
5.1 UNFCCC: Differentiated Responsibility and Justice
5.2 APP: Differentiated Obligations Through Market Exchange
6. CONCLUSION
Electronic copy available at: http://ssrn.com/abstract=2619368
McGee & Taplin
Volume 5: Issue 1
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he Asia-Pacific Partnership on Clean Development and Climate (APP) was launched

at a meeting of the Association of Southeast Asian Nations (ASEAN) in Vientiane,
Laos in July 2005. The original six nations of the APP were Japan, Australia, Republic of
Korea, China, India and the United States (U.S.); Canada became the seventh partner nation
of the APP in October 2007. New Zealand has also expressed interest in joining the APP.
The APP Charter indicates that the partnership is aimed at addressing air pollution, poverty
eradication, climate change, development and energy security. The APP is a technology cooperation agreement designed to facilitate cooperation between private and public sectors in
information exchange, technological research and market implementation of clean energy
and energy efficient technologies. Unlike the Kyoto Protocol to the United Nations Framework
U.S., State Department, News Release, Announcing the Asia-Pacific Partnership on Clean Development (28
July 2005), online: U.S. Embassy in Australia <http://canberra.usembassy.gov/irc/us-oz/2005/07/28/
ds2.html>.
Asia Pacific Partnership, Communiqu, Communiqu: Second Ministerial Meeting, New Delhi (15
October 2007), online: APP <http://www.asiapacificpartnership.org/pdf/resources/DelhiCommunique.
pdf> [APP Delhi Communiqu].
N.Z., Ministry for the Environment, Asia-Pacific Partnership on Clean Development and
Climate, CBC Min 06 17/19, online: Ministry for the Environment <http://www.mfe.govt.
nz/issues/climate/resources/cabinet-papers/cbc-min-06-17-19.html>.
Asia Pacific Partnership, Charter for the Asia-Pacific Partnership on Clean Development and Climate
(January 2006), online: <http://www.asiapacificpartnership.org/pdf/resources/charter.pdf>, clause 1.1.
[APP Charter].
14
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McGee & Taplin
Convention on Climate Change (UNFCCC), the APP has no internationally agreed targets
for reducing greenhouse gas emissions. Instead, each APP nation is at liberty to form national
goals and targets, should they see fit. The APP approach is very different from the binding
emission reduction targets for developed nations under the Kyoto Protocol.
At the time of launch, the APP was promoted by some partner nations as a historic new
development in international energy security, development, environment and climate change
policy. The emergence of the APP is arguably one of the most significant developments in
international climate change policy in recent years. The APP facilitates dialogue between key
nations which are large emitters of greenhouse gases, but also offers significant prospects of an
effective global policy response. In quantitative terms, the seven nations of the APP produce
45 per cent of global economic activity, consume 48 per cent of global energy and emit 50
per cent of total greenhouse gas emissions. The two leading developing nations of the APP,
China and India, are the most populous nations of the developing world, with fast-growing
economies10 and steadily rising national greenhouse gas emissions.11 China is rivalling the U.S.
as the single largest national emitter of greenhouse gas emissions.12 However, the U.S. remains
a leading per capita emitter of greenhouse gases13 and is directly responsible for over one-fifth
of global emissions.14 It is clear that the U.S. must play a central role in any new international
agreement to reduce greenhouse gas emissions. A number of APP states such as Japan, South
Korea, and the U.S. are also world leaders in high technology development and have significant potential to contribute to development and implementation of technologies to reduce
greenhouse gas emissions. The APP membership is drawn from nations that are either highly

Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, UN
Doc. FCCC/CP/1997/L.7/Add.1, 37 I.L.M. 22 [Kyoto Protocol].
Jeffrey McGee & Ros Taplin, The Asia Pacific Partnership on Clean Development and Climate: A
Complement or Competitor to the Kyoto Protocol (2006) 18:3 Global Change, Peace & Security 173
at 186-187 [McGee & Taplin, Complement or Competitor?].
Ibid.
Austl., Commonwealth, Press Conference, Senator Ian Campbell, Global Action on Climate Change (28
July 2005), online: Department of the Environment, Water, Heritage and the Arts <http://www.environment.gov.au/minister/archive/env/2005/tr28jul05.html>.
Austl., Commonwealth, Asia-Pacific Partnership on Clean Development and Climate Partnership for
Action (2007), online: Department of Foreign Affairs <http://www.ret.gov.au/Documents/app/_documents/partnership-for-action-booklet.pdf> at 5.
10
World Bank Group, China Data Profile (2007), online: World Bank <http://ddp-ext.worldbank.org/ext/ddpreports/ViewSharedReport?&CF=&REPORT_ID=9147&REQUEST_
TYPE=VIEWADVANCED>; World Bank Group, India Data Profile (2007), online; World Bank <http://
ddp-ext.worldbank.org/ext/ddpreports/ViewSharedReport?&CF=&REPORT_ID=9147&REQUEST_
TYPE=VIEWADVANCED>.
11
Kevin A. Baumert, Timothy Herzog & Jonathan Pershing, Navigating the Numbers: Greenhouse Gas Data
and International Climate Policy (2005), online: World Resources Institute <http://pdf.wri.org/navigating_numbers_chapter2.pdf> at 15 [Baumert].
12
John Vidal & David Adam, China Overtakes U.S. as Worlds Biggest Co2 Emitter The Guardian
(19 June 2007), online: The Guardian <http://www.guardian.co.uk/environment/2007/jun/19/china.
usnews>.
13
Baumert, supra note 11 at 12.
14
Ibid.
McGee & Taplin
Volume 5: Issue 1
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emitting, growing strongly or technology-rich. This membership highlights the potential significance of the partnership for the future shape of the international climate regime.15
The U.S has recently promoted the APP as a model for the international climate change
regime for the post-2012 period.16 The significance of the APP technology partnership model
was underscored by a statement from the George W. Bush administration prior to the Group
of Eight Industrialized nations (G8) summit in Germany on 31 May 2007. In this statement, the White House proposed a U.S.-facilitated dialogue of major emitters and energy consumers that would build on and advance U.S. relations with the Asia-Pacific Partnership on
Clean Development and Climate and other technology and bilateral partnerships.17 Meetings
of this U.S. Major Economies Process on Energy Security and Climate Change were held
in Washington D.C. in September 2007, Hawaii in January 2008, Paris in April 2008, and
in Hokkaido, Japan in July 2008. The U.S. position during this Major Economies Process
drew significantly upon the APP in advocating for industry-based technology development
task forces.18 The Obama Administration has re-baptized this process as the Major Economies
Forum on Energy and Climate.19
The APP model of international soft-law technology cooperation agreements may have
a significant influence on negotiations for the shape of the post-2012 climate regime.20 It is
therefore important to clarify the relationship between the APP and the existing hard-law treaty
framework of the UNFCCC.21 This article critically assesses the claim in the APP founding
documents that the partnership is consistent with the UNFCCC. In particular, the article
analyzes whether the APP is consistent with the international environmental law principle of
common but differentiated responsibilities (CBDR) that is fundamental to the UNFCCC.
15
The word regime is used here to include both the hard law treaty framework of the UNFCCC and
Kyoto Protocol, and also varied soft law or non-binding agreements that have been formed. This is
in accordance with the definition of regime given by international relations theorist Stephen Krasner:
implicit or explicit principles, norms, rules, and decision-making procedures around which actors
expectations converge in a given area of international relations. See Stephen Krasner, ed., International
Regimes (Ithaca: Cornell University Press, 1983) at 2.
16
U.S., Department of State, USA Energy Needs, Clean Development and Climate Change Partnerships in
Action (2006), online: Department of State <http://www.state.gov/documents/organization/75455.pdf>
at 6-7.
17
U.S., The White House, News Release, Fact Sheet: A New International Climate Change
Framework (31 May 2007), online: The White House <http://georgewbush-whitehouse.archives.
gov/news/releases/2007/05/20070531-13.html>.
18
Jeffrey McGee & Ros Taplin, The Role of the Asia-Pacific Partnership in Discursive Contestation of
the International Climate Regime (2009) 9:3 International Environmental Agreements: Politics, Law,
Economics [in press].
19
U.S., Department of State, Major Economies Forum on Energy Security and Climate, online: Department
of State <http://www.state.gov/g/oes/climate/mem/>.
20
The first compliance period of the Kyoto Protocol expires in 2012. Negotiations are currently being carried
out under the UNFCCC for a further protocol to operate beyond 2012.
21
United Nations Framework Convention on Climate Change, 12 June 1992, 1771 U.N.T.S. 107, (1992) 31
I.L.M. 849 (entered into force 21 March 1994) [UNFCCC]. For a detailed examination of the relationship between the APP and Kyoto Protocol see McGee & Taplin, Complement or Competitor?, supra
note 6.
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2. THE UNITED NATIONS CLIMATE REGIME AND THE ASIA-PACIFIC PARTNERSHIP

2.1 The UN Framework Convention on Climate Change
The UNFCCC is the founding international treaty of the United Nations climate change
regime and enjoys almost universal national membership.22 This section contains a brief overview of the content and structure of the UNFCCC.
The objective of the UNFCCC is to stabilise atmospheric greenhouse gas concentrations at a level that would prevent dangerous anthropogenic interference with the climate
system.23 The UNFCCC contains a commitment by all nations to develop national greenhouse gas inventories, formulate national mitigation and adaptation programs and promote
and cooperate in scientific research, education, training and public awareness.24 Annex 1 of the
UNFCCC contains a list of the developed nations and economies in transition.25 The Annex
1 nations have a non-binding commitment to return their greenhouse gas emissions to 1990
levels by the year 2000.26 However, the richer developed nations from Annex 1, all members
of the Organization for Economic Cooperation and Development (OECD), are also listed
in Annex 2 to the UNFCCC. The UNFCCC Annex 2 nations commit to providing funds
for developing nations to compile inventories of greenhouse gas emissions and report on those
emissions.27 The Annex 2 nations have also committed to assisting developing nations with the
incremental costs of climate change mitigation and to providing funds for adaptation assistance and technology transfer. Article 7 of the UNFCCC creates a Conference of the Parties
(COP) process that commenced in 1995 and provides an opportunity for the parties to regularly meet and establish further commitments. This COP process resulted in the Kyoto Protocol
on binding emission reduction targets for the rich developed nations finalized at COP 3 in
1997.28 The Kyoto Protocol also has wide coverage, with 184 nations to the UNFCCC having
ratified it to date.29 The protocol contains binding emission reduction or limitation targets for
the rich developed nations to achieve by the first compliance period of 2008-2012. The Kyoto
emission reduction or limitation targets are set with reference to 1990 emission levels and are
listed in Annex B of the Kyoto Protocol.30 The COP process for the UNFCCC has continued,
with the Bali Action Plan for negotiations on mitigation, adaptation, technology transfer and
improved financial resources being the most prominent agreement arising from COP 13 at
Bali, Indonesia in December 2007.31 The Bali Action Plan has set in train negotiations for new
22
UNFCCC Secretariat, Status of Ratification (22 August 2007), online: UNFCCC <http://unfccc.int/
essential_background/convention/status_of_ratification/items/2631.php>. The UNFCCC has been
ratified by 192 countries.
23
UNFCCC, supra note 21 at art. 2.
24
Ibid. at arts. 4(1), 5 and 6.
25
Meaning in transition from a centrally planned to market economy.
26
UNFCCC, supra note 21 at art. 4(2).
27
UNFCCC, supra note 21 at art. 4(3)-(5).
28
Kyoto Protocol, supra note 5.
29
UNFCCC, Kyoto Protocol: online: UNFCCC <http://unfccc.int/kyoto_protocol/items/2830.php>.
30
Kyoto Protocol, supra note 5 at art. 3(1) and Annex B.
31
UNFCCC, Bali Action Plan, online: UNFCCC <http://unfccc.int/files/meetings/cop_13/application/

pdf/cp_bali_action.pdf>.
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national emission reduction obligations and other commitments for the post-2012 period. It is
hoped that these obligations will be agreed at the COP 15 meeting at Copenhagen, Denmark
in December this year.
2.2 The Asia-Pacific Partnership on Clean Development and Climate
The launch of the APP was an unexpected development in international climate change
policy.32 Its initiation received significant media attention as the two developed nations at that
time outside the Kyoto Protocol Australia33 and the United States were both prominent
members. The presence of the large developing nations China and India was also considered
significant, as these countries are key players in future efforts at global greenhouse gas emission reductions. Canada became the seventh country of the APP in October 200734 after it
unilaterally abandoned earlier that year its commitment to achieve its Kyoto Protocol emission
reduction targets.35
The structure and organization of the APP is very different from the hard law treaty framework of the UNFCCC. The APP has an appearance of formality in that it features a charter, a
common founding document of hard law treaty regimes.36 However, the APP Charter clearly
states that it is intended to be non-binding between the partner nations.37 This lack of intention to be bound in international law means the APP is best characterized as soft law, in particular, a memorandum of understanding (MOU).38 The APP was formed outside the UN
climate change negotiations and there has been no formal statement as to which countries
played the lead roles in its formation. However, the APP was consistent with the preference of
the George W. Bush Administration for voluntary, non-binding agreements in international
climate change policy.39 The U.S. has also taken on the key initial leadership roles in the APP
32
There was no public foreshadowing of the APPs formation or launch. See e.g. Harro Van Asselt, From
UN-ity to Diversity? The UNFCCC, the Asia-Pacific Partnership, and the Future of International Law
on Climate Change (2007) 1:1 Carbon Climate Law Review 17.
33
In late 2007, after a change in government, Australia altered its position and ratified the Kyoto
Protocol. See Australia Ratifies Kyoto Protocol Sydney Morning Herald (3 December 2007), online:
Sydney Morning Herald <http://www.smh.com.au/news/environment/australia-ratifies-kyoto-protocol/2007/12/03/1196530553203.html>.
34
APP Delhi Communiqu, supra note 2.
35
Canada, Canadas New Government Announces Targets to Tackle Climate Change and Reduce
Air Pollution (2007), online: Government of Canada <http://www.ecoaction.gc.ca/news-nouvelles/20070426-13-eng.cfm>.
36
APP Charter, supra note 4.
37
Ibid. at clause 2.1.1.
38
Hilary Charlesworth et al., No Country is an Island: Australia and International Law (Sydney: UNSW
Press, 2006) at 31. A memorandum of understanding is an agreement that creates a mutual understanding between countries but is not intended to be legally binding in international law; see generally Anthony Aust, Handbook of International Law (Cambridge: Cambridge University Press, 2005) at
53-56.
39
Jeffrey McGee & Ros Taplin, The Asia-Pacific Partnership and United States International Climate
Change Policy (2008) 19:2 Colorado Journal of International Environmental Law and Policy at 179218 [McGee & Taplin, APP & U.S. Climate Change Policy].
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organizational structure (see below). These two matters provide a strong inference of heavy
U.S. involvement in the formation of the APP.
The key APP decision making forum is its Policy and Implementation Committee (PIC)
comprised of representatives of the seven partner nations.40 The PIC has the role of establishing the framework, policies, and procedures of the partnership and periodically reviewing
progress.41 The PIC also manages implementation of APP activities including engagement
with international development banks, governmental organizations and the private sector.42
The APP also has an Administrative Support Group (ASG) that facilitates partnership meetings and serves as a focal point for information exchange.43 A Work Plan for the APP was
released by the partnership in January 2006 and describes the APP as an innovative approach
of using government/industry task forces to develop sustainable solutions to our shared challenges through bottom-up practical action.44 The APP Work Plan creates the following eight
sectoral Task Forces representing key industry sectors of the partner economies:
1. Cleaner Fossil Fuel Energy Task Force;
2. Renewable Energy and Distributed Generation Task Force;
3. Power Generation and Transmission Task Force;
4. Steel Task Force;
5. Aluminum Task Force;
6. Cement Task Force;
7. Coal Mining Task Force; and the
8. Buildings and Appliances Task Force.45
The APP Task Forces are chaired and co-chaired by the various partner nations of the APP46 and
are expected to formulate detailed action plans outlining both immediate and medium-term
specific actions, including possible flagship projects and relevant indicators of progress.47
Canada has taken on the role as co-chair of the Cement Industry Task Force.48 Members from
the private sector and research organizations may participate in formulating the activities of
the APP Task Forces.49 The eight APP Task Forces have each devised an Action Plan that was
40
APP Charter, supra note 4 at clause 4.4.
41
Ibid. at clauses 4.2 and 4.4.
42
43
44
Asia-Pacific Partnership, Asia-Pacific Partnership on Clean Development and Climate Work Plan (2006),
online: Asia-Pacific Partnership <http://asiapacificpartnership.org/pdf/resources/workplan.pdf> [APP,
Work Plan].
45
Ibid.
46
Ibid. at 2-8.
47
Ibid. at 1.
48
See the APP Organizational Chart below.
49
APP, Work Plan, supra note 44 at 1.
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approved by the APP PIC in October 2006.50 To date, the PIC has approved over 170 task
force projects which are at various stages of implementation through public-private activities
of the eight APP Task Forces.51 Figure 1 below provides a schematic summary of the latest
institutional structure of the APP:
Figure 1: APP Organizational Chart June 200852
2.3 Claims of Consistency between the APP and UNFCCC

Since withdrawing from the Kyoto Protocol process in 2001, the U.S. has been particularly
active in forming a number of bilateral and multilateral climate change related partnerships
outside the UN system.53 The U.S.-initiated climate change partnerships are primarily directed
at climate science, greenhouse gas accounting, exchange of information and technology devel-
50
Asia-Pacific Partnership, Executive Summary of Task Force Action Plans (12-13 October 2006), online:
Asia-Pacific Partnership <http://www.asiapacificpartnership.org/pdf/resources/ExecutiveSummary%20_
31%20Oct%2006_%20_2_.pdf >.
51
Asia-Pacific Partnership, APP Project Roster (2009), online: Asia-Pacific Partnership <http://www.asiapacificpartnership.org/english/project_roster.aspx>. For a more detailed discussion of the APP structure,
composition and activities of the Working Groups, see McGee & Taplin, APP & U.S. Climate Change
Policy, supra note 39 and APP, Work Plan, supra note 44.
52
Asia-Pacific Partnership, Organizational Chart (2008), online: Asia-Pacific Partnership <http://www.asiapacificpartnership.org/pdf/OrganizationalChart_June2008.pdf>.
53
For example, between 2001 and 2006 the U.S. entered into soft law climate change partnerships with
fifteen nations or regional organizations. See McGee & Taplin, APP & U.S. Climate Change Policy
supra note 39 at 201-203.
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opment.54 The APP follows this pattern of the U.S. favouring soft law climate change partnerships at an international level.55 However, the APP is significantly wider in scope than other U.S.
climate change partnerships in that it specifically advocates greenhouse gas intensity targets56
as a desirable goal for climate change policy.57 In advocating nationally-determined greenhouse
gas intensity targets, the APP broadens the focus of these non-UN initiatives to include the
type of national emission reduction commitments that should be pursued.58 Articulating the
exact nature of emission reduction engagements had previously been the exclusive province of
the UNFCCC process. As the UNFCCC process and APP are advocating fundamentally different types of national emission reduction commitments, it is important to analyze how these
two agreements will likely interact.
The official position regarding the relationship between the APP and the UNFCCC is
found in the APP founding documents. The APP Vision Statement, released at the APP launch
in 2005, contains the following claim about its relationship with the UNFCCC: The partnership will be consistent with and contribute to our efforts under the UNFCCC 59
A further similar statement claiming consistency between the APP and UNFCCC is contained in a Communiqu for the 2006 APP Sydney ministerial meeting.60 The APP Charter
released in 2006 also contains a claim of consistency between the APP and UNFCCC:
Bearing in mind that the purposes of the Partnership are consistent with the principles of the
United Nations Framework Convention on Climate Change and other relevant international
instruments.61
There is thus a strong sequence of official claims by the APP nations that the partnership
is consistent with the UNFCCC. The meaning of the word consistent is not defined in the
APP founding documents (or the UNFCCC). As the APP is not a treaty, the rules for interpre-
54
Ibid. at 201-207.
55
Ibid. at 213-215.
56
Greenhouse gas intensity is a measure of greenhouse gas emissions per unit of economic output (e.g.
tonnes of CO2 equivalent per million dollars of Gross Domestic Product). This stands in distinct contrast
to the absolute emission reduction targets of the Kyoto Protocol that require a reduction in emissions
below a base-year of 1990 national levels. See McGee & Taplin, APP & U.S. Climate Change Policy,
supra note 39 at 194-195.
57
58
The APEC Leaders Sydney Declaration on Climate Change of September 2007 draws significantly upon
the APP and is the only other multilateral initiative to include advocacy for greenhouse gas emissions
intensity targets. See APEC, APEC Leaders Sydney Declaration on Climate Change (2007), online: APEC
<http://www.apec.org/etc/medialib/apec_media_library/downloads/news_uploads/2007aelm.Par.0001.
File.tmp/07_aelm_ClimateChangeEnergySec.pdf>.
59
Asia-Pacific Partnership, Vision Statement of Australia, China, India, Japan, the Republic of Korea, and the
United States of America for a New Asia-Pacific Partnership on Clean Development and Climate (2005),
online: Asia-Pacific Partnership <http://www.asiapacificpartnership.org/pdf/resources/vision.pdf>.
60
Asia Pacific Partnership, Communiqu, Communiqu: First Ministerial Meeting, Sydney (11-12
January 2006), online: Asia Pacific Partnership <http://www.asiapacificpartnership.org/pdf/resources/
Communique.pdf>.
61
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tation of treaties of the Vienna Convention on the Law of Treaties (Vienna Convention)62 are
not binding. However, the rules of interpretation in the Vienna Convention are still a useful
guide in interpreting soft law agreements such as the APP. The Vienna Convention indicates
that the words of a treaty should be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object
and purpose.63 The ordinary meaning of the word consistent is therefore sought in the
context of the content and purpose of the APP founding documents. The Concise Oxford
Dictionary provides the following definition of the word consistent for when it is used as an
adjective: compatible or in agreement; not containing any logical contradictions.64 The APP
founding documents contain no suggestion that the word consistent is intended to have any
meaning other than compatible or in agreement; not containing any logical contradictions.
In contrast to this ordinary meaning of the word consistent, this article argues that there is in
fact a significant conflict between the APP and the UNFCCC in the treatment of the principle
of CBDR.
A significant body of academic work has analyzed the interaction of international agreements designed to address different environmental problems.65 The potential for climate
change agreements to impact negatively upon the effectiveness of biodiversity treaties is one
prominent example of this research.66 However, there has been little analysis on potential competitive interaction between two or more international agreements formed to respond to the
same environmental problem.67 International agreements designed to address the same issue
may compete if they pursue inconsistent substantive goals or have processes which will diminish the effectiveness of each other. This article seeks to further such analysis by identifying areas
of potential conflict between the APP and UNFCCC with regard to the human response to
climate change.
The following sections provide an outline of the legal doctrine and theoretical concepts
used later in this article to identify conflicts between the APP and the UNFCCC.
3. EQUITY AND NORMS
The following sections explain the concepts of equity and norms that are used in this article
to contrast the treatment of CBDR in the APP and UNFCCC.
3.1 Equity and International Environmental Law
This article argues that the APP and the UNFCCC adopt significantly different positions
62
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. at 331 (entered into force 27
January 1980) [VCLT].
63
Ibid. at art. 31(1).
64
The Concise Oxford Dictionary, online: Oxford Reference Online Premium <http://www.oxfordreference.
com/views/BOOK_SEARCH.html?book=t23&subject=s7>.
65
See e.g. Kristin Rosendal, Impacts of Overlapping Regimes: The Case of Biodiversity (2001) 7 Global
Governance at 95-117.
66
Ibid. at 95-117.
67
A notable exception is the critical analysis by the present authors of claims that the APP is a complement to the Kyoto Protocol. See McGee & Taplin, Complement or Competitor?, supra note 6.
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in relation to issues of equity in the international response to climate change. It is therefore

important to be clear on the meaning being ascribed to the term equity in this context.
Shelton notes that the term equity is commonly used in international law as a synonym
for fairness or justice68 and it is this use of the term that is employed here.69 This article
also adopts Thomas Francks important distinction between procedural equity and substantive
equity in international law.70 Francks procedural equity refers to a deeply felt belief that for a
system of rules to be fair, it must be firmly rooted in a framework of formal requirements about
how rules are made, interpreted and applied.71 Procedural equity, therefore, concerns fairness
in the process of formation, implementation, interpretation and enforcement of international
agreements. The level of procedural equity of an international environmental agreement will
have a significant effect upon its perceived legitimacy among affected parties.72 International
environmental law has developed procedural equity criteria relating to the openness and inclusiveness of rulemaking processes.73 Procedural equity typically considers the extent to which
affected parties receive notification, access to information, and the ability to participate and
articulate their interests as a part of the process of international law making.74
Francks substantive equity is concerned with the consequences or outcomes of international
law. In international environmental law, substantive equity concerns the distribution of benefits and burdens arising from transboundary or global environmental problems addressed
by international environmental agreements.75 Halvorssen identifies two aspects of substantive equity in international environmental regimes: the allocation of resources and benefits
of human activity and responsibility for pollution.76 The second aspect of Halvorssens substantive equity criteria is particularly important when allocating a higher level of obligation
to developed nations due to historic contributions to an environmental problem. As will be
discussed later, the historical responsibility of developed nations for greenhouse gas emissions
is an important justification for key provisions of the UNFCCC.
68
Dinah Shelton, Equity in Daniel Bodansky, Jutta Brunee & Ellen Hey, eds., Oxford Handbook of
International Environmental Law (Oxford: Oxford University Press, 2007) at 640. A similar synonymous
use of the terms equity, justice and fairness is adopted in this article, although the word equity will
be preferred [Shelton, Equity].
69
Within various disciplines there are debates about the proper meaning of the terms equity and fairness. See e.g. ibid. at 640-642.
70
Thomas Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995) at 8
[Franck].
71
Ibid. at 7-8.
72
Shelton, Equity, supra note 68 at 660.
73
The UNFCCC and United Nations Convention on the Protection of Biological Diversity in particular
have special funding arrangements whereby developed nations provide financial resources for developing nation representation in international negotiations on treaty and protocol obligations. See Yoshiro
Matsui, Some Aspects of the Principle of Common but Differentiated Responsibilities (2002) 2:2
International Environmental Agreements: Politics, Law, and Economics 151 at 154-155 [Matsui].
74
Shelton, Equity, supra note 68 at 660.
75
Franck, supra note 70 at 352.
76
Anita Halvorssen, Equality Amongst Unequals in International Environmental Law: Differential Treatment
for Developing Countries (Boulder: Westview Press, 1999) at 29-30.
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3.2 The Role of Norms in International Environmental Law Doctrine

Magraw provides a very useful theory for analyzing both procedural and substantive equity in
international environmental agreements.77 He offers an analytical typology that identifies three
levels of norms in the obligations contained in international agreements. First, Magraw identifies absolute norms as normative principles that provide identical or equal obligations for all
countries which are parties to an agreement.78 Second, Magraw argues that differing material
circumstances and ideational positions of countries provide the potential for arguments regarding state responsibility and capacity to act in response to international environmental problems. Thus, the contextual norm is designed to account for different circumstances of states.
Though the contextual norm on its face provides identical treatment to all States affected by
the norm, in its application, consideration is given to characteristics that might vary from
country to country.79 An example of a contextual norm is an obligation in an international
agreement that is broadly agreed to by all countries involved, but is qualified in that each
country must only make all reasonable or practicable efforts80 to meet the obligation. The
qualifying words of contextual norms allow a country to raise the restrictive and/or enabling
effects of its individual circumstances to argue that it has complied with treaty obligations.81
Finally, Magraw identifies a third type of norm used in international agreements: differential
norms, which provide a different, presumably more advantageous, standard for one set of
States than for another set.82 Differences in the circumstances of countries are more fully recognized by varying levels of obligation being formally built into international agreements. The
international legal regime designed to prevent depletion of atmospheric ozone, particularly
the Montreal Protocol, provides a prominent example of the use of differential norms.83 The
Montreal Protocol contains timetables for restricting production of ozone-depleting substances
that provides substantially more generous compliance periods for developing countries.84
The Magraw typology of absolute, contextual and differential norms offers a useful schema
for identifying varying levels of obligations that nations have undertaken in international environmental agreements. The procedural and substantive equity issues inherent in any international environmental negotiation will typically be settled by an international agreement
containing a combination of these three norms.
77
Daniel Magraw, Legal Treatment of Developing Countries: Differential, Contextual and Absolute
Norms (1990) 1 Colo. J. Intl Envtl. L. & Poly 1 at 74 [Magraw].
78
Ibid. at 76.
79
Ibid. at 74.
80
See UNFCCC, supra note 21 at art. 4.5, which states The developed country Parties and other developed
Parties included in Annex II shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other Parties.
81
Magraw, supra note 77 at 74.
82
Ibid. at 73.
83
See United Nations Environment Programme, The Montreal Protocol on Substances that Deplete the Ozone
Layer, online: United Nations Environment Programme <http://www.unep.org/ozone/pdfs/MontrealProtocol2000.pdf>.
84
Ibid. at art. 5.
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4. COMMON BUT DIFFERENTIATED RESPONSIBILITIES

4.1 Description of CBDR
This section uses Magraws typology of norms described above to assist in elucidating the principle of CBDR. Philippe Sands describes CBDR as having two elements:
The first concerns the common responsibility of states for the protection of the environment, or parts of it, at the national, regional, and global levels. The second concerns the need to take account of the differing circumstances, particularly in relation
to each states contribution to the creation of a particular environmental problem and
its ability to prevent, reduce and control the threat (emphasis added).85
Sands first element of CBDR is an absolute norm of common responsibility for all nations
concerned to respond to international and global environmental problems. The first element
inherently recognizes that ecological and economic interconnectedness means that an effective
response to international environmental problems will only occur by nations acting together. It
is a strong recognition of a necessity to approach international problems in a spirit of solidarity and cooperation.86 However, this absolute norm of all nations accepting responsibility for
protecting the environment is, in practice, often qualified by a further contextual norm that
allows consideration of national circumstances in implementation of the common obligation.87
Therefore, in practical implementation of the first element of CBDR there may be some differentiation between the responsibilities of countries based on their national circumstances.
Sands second element of CBDR is where the strongest differentiation in state obligation
occurs. The second element of CBDR is more contentious in that it involves differential norms
that typically impose a higher level of obligation on developed states. Differentiation of state
obligations under the second element of CBDR is based upon differing national contributions to international environmental problems. This opens up a discussion of current and
historical contributions of various states to environmental problems, including the major role
of developed states in causing global commons degradation such as climate change.88 The state
contribution aspect of CBDR was well articulated by forty-one developing nations in the 1991
Beijing Ministerial Declaration on Environment and Development:
While the protection of the environment is in the common interests of the international community, the developed countries bear the main responsibility for the degradation of the global environment. Ever since the industrial revolution, the developed
countries have over-exploited the worlds natural resources through unsustainable
85
Philippe Sands, Principles of International Environmental Law, 2nd ed. (Cambridge: Cambridge University
Press, 2003) at 286 [Sands].
86
Lavanya Rajamani, The Principle of Common but Differentiated Responsibility and the Balance of
Commitments under the Climate Regime (2000) 9 R.E.C.I.E.L. 120 at 121 [Rajamani, CBDR].
87
Sands, supra note 85 at 286.
88
UN GA, Res. 2849 (XXVI), UN GAOR, 26th Sess., (1971) 70. This resolution expressly recognizes
developed world contributions to global environmental problems through industrialization and consumption patterns.
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patterns of production and consumption, causing damage to the global environment, to the detriment of developing countries.89
This emphasis on contribution to international environmental problems is a contentious issue

between developed and developing states.90 The developing world has been keen to adopt an
approach that highlights the higher historical contribution of developed nations to climate
change. However, developed nations, particularly the U.S., are often more concerned with
emphasizing the source of current and future patterns of greenhouse gas emissions, particularly
from strongly developing nations such as China and India.91
Sands second element of CBDR also identifies differing abilities or capacities of nations to
respond to environmental problems as the second basis for use of differential norms. This recognizes that developed nations have greater financial and social capital and are in a better position
to divert resources to address global environmental problems such as climate change. A prominent example of the differing abilities or capacities of nations to respond to environmental
problems is the inclusion of double standards in environmental agreements that contain less
onerous obligations for developing nations.92 The lower obligations of developing nations may
take the form of less stringent substantive environmental obligations93 or more relaxed timing
for implementation of common obligations.94 Differences in the national capacity of nations
to respond to environmental problems implies an obligation for nations with higher levels
of financial and social capital to provide developing nations with supplementary financial
resources to assist in implementing obligations under international environmental treaties.
Finally, Sands identifies greater needs of developing nations in terms of economic/social
development, poverty alleviation95 and special vulnerability to adverse impacts,96 as a further
basis for differentiation of obligations in international environmental agreements.
89
UNFCCC, Beijing Ministerial Declaration on Environment and Development, UNFCCC, Annex, UN Doc.
A/CONF.151/PC/85, (1991) at para. 7, as quoted in Matsui, supra note 73 at 154-155. See Conference
on Environment and Development, UNGAOR, 85th Sess., UN Doc. A/RES44/228 (1989).
90
Lorraine Elliot, The Global Politics of the Environment (Washington Square, N.Y.: New York University
Press, 2004) at 174-175.
91
U.S., The White House, White House Climate Change Review Interim Report (11 June 2001), online: The
White House <http://georgewbush-whitehouse.archives.gov/news/releases/2001/06/climatechange.pdf>
at 13.
92
Matsui, supra note 73 at 156.
93
For example, the Kyoto Protocol does not contain binding emission reduction targets for developing
nations for the first commitment period 2008-2012.
94
For example, the ozone regime has more relaxed timing for developing nations to phase out ozone-depleting gases. See Matsui, supra note 73 at 157.
95
Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 142, Can. T.S. 1993 No. 24 (entered
into force 29 December 1993) at art. 20(4). This article specifically recognizes that economic and social
development and eradication of poverty are the first and overriding priorities of the developing country
Parties.
96
See UNFCCC, supra note 21 at art. 3(2). This article contains a clear recognition that in formulating
actions to achieve the goal of stabilizing greenhouse gas emissions the specific needs and special circumstances of developing countries need to be given full consideration, including those particularly
vulnerable to adverse impacts of climate change, a clear call for differentiation based upon vulnerability
to adverse impacts.
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Figure 2 provides a schematic summary of Sands description of the two elements of

CBDR:
Figure 2: Sands Elements of CBDR
First Element: Absolute norm of universal cooperation on global
environmental problems but often qualified by a contextual norm allowing
consideration of national circumstances.
CBDR
basis
Second Element: Differential norms

provide varying levels of obligation for
developed and developing nations.
basis
basis
Differing
Contribution
Differing
Capacities
Differing
Needs
4.2 CBDR: Substantive Equity v. Economic Efficiency?

U.S. international lawyer Christopher Stone has provided an analytical framework to explain
the underpinnings of CBDR.97 Stone has identified three versions of CBDR, each of which
represents a different balance of substantive equity and economic efficiency. The first version,
rational bargaining CBDR, provides that in any environmental agreement between self-interested, independent states there is likely to be some differentiation in the obligations and
benefits agreed upon due to nations having differing interests and bargaining positions. He
comments that rational bargaining CBDR should be welcomed as the natural outcome of
mutually beneficial negotiations among negotiants pursuing their own advantage in the most
narrowly self-interested way.98 Differentiation of responsibility between various states arrived
at by rational self-interested bargaining is viewed as efficient in the sense of providing Pareto
97
Christopher J. Stone, Common but Differentiated Responsibilities in International Law (2004) 98

Am. J. Intl L. 276.
98
Ibid. at 283-284.
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improvement.99 Rational bargaining CBDR is based on egoistic, self-interested bargaining

between states without recourse to any substantive equity principle, other than rational pursuit
of self-interest. Stone notes that although problems with public goods such as global environmental protection are often associated with failure in individual state decision making, rational
bargaining CBDR still has an important role.100 To illustrate, Stone explains that the lower
marginal cost of greenhouse gas emission abatement in developing states is a fruitful situation
for rational bargaining.101 For instance, if developed states decide it is in their interests to take
the lead in reducing greenhouse gas emissions,102 rational bargaining with developing states
will allow developed states to reduce their emissions at a lower financial cost by implementing projects for emission reduction in developing states. For example, a developed state might
choose to invest in preservation of forests in a developing country in preference to the more
expensive task of shifting its domestic energy mix or transport infrastructure away from fossil
fuel use. Developed states benefit (lower financial cost of emissions reduction) and developing states are no worse off (and are arguably better off as their exposure to risks associated
with climate change is reduced). Therefore, rational bargaining CBDR claims that such a differentiation of responsibility will arise naturally in international environmental agreements
by self-interested state bargaining. The gains from cooperation are simply allocated by the
bargaining of the state parties.
Stones second version of CBDR, equitable CBDR, provides a greater role for substantive
equity concerns in sharing the gains from cooperation. Equitable CBDR involves developed
nations shouldering a greater share of obligations in international environmental agreements
due to their greater responsibility for the problem, superior capabilities to respond, or the
greater needs of developing states.103 Stone comments that the greater wealth of developed
nations means that the marginal loss of utility of developed nations giving up resources to
protect a global public good, such as a safe climate, is less than for developing states.104 Stone
uses the following metaphor: if a beggar and a millionaire each lose a dollar in the park, the
loss represents a lesser reduction in utility to the millionaire.105 A larger contribution in financial terms by developed states may therefore represent no more than a rateable or even lighter
99
Ibid. at 284. Pareto improvement is a concept from neoclassical economic analysis according to which
societal benefit is maximized by independent, self-interested contract formation by individuals. The logic
is that individuals will enter into contracts only if they increase, or at least do not reduce, their satisfaction or utility. Pareto improvement occurs when a contract is entered into making one party better off
and no other party worse off. The aggregate utility/satisfaction of a society thus increases as a result of
rational bargaining and contract formation. In theory, contract formation will occur until all rational
bargains have been entered into such that utility is maximized. Individual and societal satisfaction/utility
is maximized by the use of individual contract formation.
100
Ibid. at 286.
101
Ibid.
102
Ibid. at 286-288. The reasoning being that rich nations have the wealth/capacity to ameliorate some of
the risk from degradation of global public goods and hence choose to invest more in those public goods.
Poor nations are busy dealing with basic needs of their populations and hence their self-interest is directed
at more short-term, material needs.
103
Ibid. at 290.
104
Ibid. at 292.
105
Ibid.
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contribution by the Rich in welfare measured by utility.106 In equitable CBDR, the range of
legitimate outcomes is confined to the set of Pareto improvements (i.e. a cooperative gain),
but within that set, distribution of the cooperative gain is allocated more heavily (or wholly)
toward the poor.107 Equitable CBDR thus allows substantive equity principles to have a role
in international climate change policy up to the point where developed states recover their
costs but only share minimally (or not at all) in the gains of cooperation. Pareto improvement
has occurred in the sense that there has been a cooperative gain in utility; however, substantive
equity principles see this gain largely (or even totally) allocated to the developing states.
The third version of CBDR identified by Stone is inefficient CBDR. This version of CBDR
also involves a cooperative gain that is allocated largely or completely to the developing states.
However, substantive equity considerations influence the level of differentiation of obligations
between the parties such that Pareto improvement is breached. The developing states receive
most or all of the gains from cooperation and the developed states fail to recoup their financial
or social outlays in utility gains. There is, in effect, a transfer of utility from developed to developing states. Stone explains inefficient CBDR as follows:
Controversy is more likely with inefficient CBDR, which would advance the Poors
welfare unconditioned by mutual, if even marginal, advances for the Rich. Such a
position underlies the demand, already alluded to, that the Rich retroactively amend
for damages, or unpaid-for advantages. The limits are to be set by some sort of corrective justice, not efficiency. The idea likewise underlies the calls, most recently at
the Johannesburg summit, for debt relief, debt cancellation, and grants In their
minds, the starting pointthe way things areis not off the negotiating table but
remains the key issue.108
Stone comments that developing state submissions in the climate change negotiations are often
based on inefficient CBDR:
The conviction that equity and fairness override efficiency runs so strong that proposals to award developed countries abatement credits for foreign-soil investments
have been stalled by objections that those who caused the problem ought not be permitted to buy their way out on foreign soileven if leasing low-cost opportunities
is, as we have shown, mutually beneficial.109
The Stone framework is useful for understanding the economic and ethical assumptions underlying various conceptions of CBDR. In particular, the Stone framework highlights a clear
tension between the substantive equity and economic efficiency in CBDR. This analysis is particularly important given Stones claim that climate change is the most dramatic stage for the
CBDR debate110 and disputes over the scope or interpretation of CBDR are at the heart of a
stalemate in the UNFCCC regime.111 The Stone and Sands explanations are used in Section
5 to explore the differing treatment of CBDR in the APP and the UNFCCC.
106
Ibid.
107
Ibid. at 293.
108
Ibid.
109
Ibid.
110
Ibid. at 281.
111
Ibid. at 280. By stalemate, Stone is referring to the standoff that developed after the U.S. withdrawal
from Kyoto in early 2002.
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4.3 History of CBDR in International Environmental law

The second element of CBDR is formal differentiation in the level of obligations placed upon
developed and developing nations. This involves some nations contributing more resources
than others in responding to a common problem. Differentiation thus has distributive consequences that will shape the substantive equity of an international agreement. This section
focuses upon this second element of CBDR by providing an historical background of the use
of differentiation of obligations in international agreements up to the UNFCCC. This section
also suggests that differentiation of obligations has been effectively used to obtain developing state support for international agreements by crafting a tentative compromise over wider
political tensions between the developed and developing world concerning environmental and
development issues.
The New International Economic Order (NIEO) arose in the early 1970s as the foundation of a developing world political program seeking redistribution of wealth and power
within the international system.112 The NIEO program called for a transfer of resources from
developed states to address the problem of significantly lower living standards in developing
nations.113 Magraw notes that the NIEO was firmly based upon favourable differential treatment for developing nations.114 Evidence of this differential treatment can be found in Article
30 of the 1974 Charter of Economic Rights and Duties of States (CERDS), a key document
of the NIEO program, which provides:
The protection, preservation and enhancement of the environment for all present
and future generations is the responsibility of all States. All States shall endeavour
to establish their own environmental and developmental policies in conformity
with such responsibility. The environmental policies of all States should enhance
and not adversely affect the present and future development potential of developing
countries.115
Article 30 of CERDS acknowledges that environmental protection is a common responsibility

of all nations. However, it also specifically states that environmental policies of all states should
enhance the development of developing nations. Environmental policies of developed nations
should thus be subject to an overriding goal of boosting development in developing nations.
CERDS contains no similar argument for differential norms to protect development in developed nations. It is clear that CERDS promotes a differential norm of favourable treatment
for developing nations in formulating international environmental policy. The initial calls for
formal differentiation in obligations in environmental treaties therefore arose out of wider
development tensions between the developed and developing world.
A similar advocacy of differential norms is contained in the 1972 Stockholm Declaration,116
which refers to the need to consider the applicability of standards which are valid for the most
112
113
Ibid.
114
Ibid.
115
Ibid. See also Charter of Economic Rights and Duties of States, GA Res. 3281(xxix), UN GAOR, 29th Sess.,
Supp. No. 31 (1974) 50, online: UN Documents <http://www.vilp.de/Enpdf/e162.pdf> [CERDS].
116
UNCHE, Declaration of the United Nations Conference on the Human Environment, 16 June 1972, 11
I.L.M. 1416 at principle 23 [Stockholm Declaration].
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advanced countries but which may be inappropriate and of unwarranted social cost for the
developing countries.117 Magraw identifies the Stockholm Convention as a starting point of
recognition of differential environmental obligations in international environmental treaties.118
From the early 1970s, environmental treaties started to contain express references to differential
circumstances and needs of developing nations.119
In the early 1980s, the United Nations Convention on the Law of the Sea (UNCLOS)
also contained references to differential norms in favour of developing countries in its preamble,120 in provisions regarding regional and global approaches to land-based pollution,121
and in the provision of technical, scientific and other assistance to protect the marine environment.122 The differential norms in favour of developing nations in UNCLOS are based upon
a lesser capacity of developing countries to respond to environmental problems in the global
oceanic commons. Similarly, differential norms in favour of developing nations under the
ozone regime reflect the lesser capacity of developing nations to alter industrial practices in
order to phase out production of gases linked to climate change.123
Prior to the Rio Earth Summit in 1992, differential norms in environmental treaties were
largely based on the lesser capacities and/or greater needs of developing nations. However,
Principle 7 of the Rio Declaration124 is a landmark statement in first formalizing national
responsibility for global environmental problems as a basis for differentiated responsibilities:125
States shall cooperate in a spirit of global partnership to conserve, protect and restore
the health and integrity of the Earths 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.
Article 7 of the Rio Declaration sets a foundation for differential norms of environmental protection based upon contribution of developed nations to global environmental degradation.
117
Ibid.
118
119
120
United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3, 21 I.L.M. 1261
(entered into force 16 November 1994) [UNCLOS]. The Convention contains reference to the special
interests and needs of developing countries. See also supra note 77 at 94.
121
Ibid. at art. 207(4) provides that states shall take into account characteristic features, the economic
capacity of developing States and their need for economic development. See the discussion in Magraw,
supra note 77 at 94.
122
UNCLOS, supra note 120 at art. 202. The article contains an obligation on the part of developed nations
to provide assistance to developing states to minimize the effects of major incidents which may have
detrimental effects on the marine environment, and in the preparation of environmental assessments. See
also Magraw, supra note 77 at 95.
123
Rajamani, CBDR, supra note 86 at 121 note 14.
124
Rio Declaration on Environment and Development, UN Conference on Environment and Development,

UN Doc. A/CONF.151/5/Rev.1, June 13, 1992, 31 I.L.M. 874 at principle 7 [Rio Declaration].
125
Ibid.
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Past and current disparities in consumption patterns can be considered with regard to the pressure developed nations place upon the global environment. Article 7 of the Rio Declaration
also formally recognizes a disparity between developed and developing nations regarding technology and financial resources. Article 7 highlights the lack of capacity in developing nations to
respond to environmental problems and the necessity for technological and financial assistance
from developed nations to fund efforts to protect the Earths ecosystems. Reference in Article
7 of the Rio Declaration to developed world responsibility in the international pursuit of sustainable development in view of the technologies and financial resources they command126
raises the possibility of wider flows of financial resources and technology transfer above that
required to meet the costs of developing nation participation in particular environmental treaties.127
The breadth of Principle 7 of the Rio Declaration gave rise to the possibility of a reinvigoration of the NIEO agenda of redistribution of wealth from developed to developing nations.
This possibility led to a U.S. interpretative statement in 1992 indicating that the special leadership role of the developed nations mentioned in Principle 7 of the Rio Declaration is based
upon our industrial development, our experience with environmental protection and actions,
and our wealth, technical expertise and capabilities.128 The U.S. further indicated that it did
not accept any interpretation of Principle 7 that would imply a recognition or acceptance
by the United States of any international obligations or liabilities, or any diminution in the
responsibilities of developing countries.129 Although the Rio Principles are soft law, the U.S.
was clearly concerned by the notion of agreeing to any conception of CBDR that involved an
obligation for funding sustainable development programs beyond specific environmental treaty
commitments. The U.S. also made it clear that any acceptance by the nation of higher levels
of obligation under Principle 7 was due to higher capabilities rather than any liability based
on responsibility for environmental damage. It is clear that the U.S. was determined to limit
application of Principle 7 of the Rio Declaration to exclude any responsibility it might have for
environmental damage and wider flows of financial assistance for sustainable development.
4.4 The CBDR Principle in the UNFCCC
Importantly, the Rio Summit saw the principle of CBDR extend beyond the soft law of Article
7 of the Rio Declaration to important new treaty law of the UNFCCC. The UNFCCC contains specific references to CBDR and also a number of examples of differential norms, as per
the Magraw typology. The preamble of the UNFCCC refers to CBDR and contains statements
that are suggestive of a differentiation of responsibility between developed and developing
states. The preamble to the UNFCCC contains a clear recognition of the differing historical emissions and current per capita greenhouse gas emissions of developed and developing
nations:
126
Ibid.
127
Duncan French, Developing States and International Environmental Law: The Importance of
Differentiated Responsibilities (2000) 98:2 International and Comparative Law Quarterly at 36-37
[French].
128
Matsui, supra note 73 at 155.
129
Ibid.
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Noting that the largest share of historical and current global emissions of greenhouse
gases has originated in developed countries, that 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 130
The preamble of the UNFCCC also expressly notes that the cooperation of all nations is
required to respond to climate change in accordance with their common but differentiated
responsibilities and respective capabilities and social and economic conditions.131 The tenth
paragraph of the preamble of the UNFCCC expressly notes the necessity for differentiation
between developing and other nations in obligations to enact legislation, environmental standards, management objectives and priorities to respond to climate change.132 This provision of
the preamble clearly raises the reduced social and economic capacities of developing nations as
a reason for imposing less onerous obligations on these nations. Similarly, the preamble to the
UNFCCC expressly recognizes the need for developed countries to take immediate action in
a flexible manner on the basis of clear priorities, as a first step toward comprehensive response
strategies at the global, national and where agreed regional level.133 There are also references
in the UNFCCC to the special needs of developing nations in responding to climate change134
and for economic growth to reduce poverty.135 Interestingly, the preamble to the UNFCCC
also expressly recognizes that the energy consumption of developing nations will need to grow
and this will include the application of new technologies on terms which make such an application economically and socially beneficial.136 This implies technology transfer from developed to developing nations on concessional terms, that is, on terms more favourable than
open market exchange.137
The substantive provisions of the UNFCCC contain a number of provisions that refer
to CBDR or contain differential norms. Article 3.1 of the UNFCCC expressly refers to both
CBDR and the respective capabilities of various nations:
The Parties should protect the climate system for the benefit of present and future
generations of humankind, on the basis of equity and in accordance with their
common but differentiated responsibilities and respective capabilities. Accordingly,
the developed country Parties should take the lead in combating climate change and
the adverse effects thereof.138
Article 3.1 refers to the Parties protecting the climate in accordance with their common but
differentiated responsibilities and respective capabilities. Arguably, by raising respective capa130
UNFCCC, supra note 21 at preamble, para. 3.
131
Ibid. at para. 6.
132
Ibid. at para. 10.
133
Ibid. at para. 18.
134
Ibid. at paras. 19-20.
135
Ibid. at para. 21.
136
Ibid. at para. 22.
137
This obligation for concessional transfer of technology to developing nations is further elaborated in
Article 11(2)(b) of the Kyoto Protocol. Developed nations are required to provide financing, including
technology transfer, so that developing nations may meet their obligations under Article 4 of the
UNFCCC.
138
UNFCCC, supra note 21 at art. 3.1.
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bilities as a separate consideration to CBDR, Article 3.1 elevates the importance of differing needs and differing contributions in applying CBDR within the UNFCCC process.
Furthermore, Article 3.2 of the UNFCCC also raises the special needs and circumstances
of developing nations, including those which are particularly vulnerable to climate change
or would bear a disproportionate or abnormal burden under the UNFCCC. Similarly, the
chapeau to Article 4 of the UNFCCC expressly obliges all parties to take into account their
common but differentiated responsibilities in fulfilling the national greenhouse inventory
reporting and other commitments.139 Significantly, Article 4.2 of the UNFCCC deals with
mitigation of greenhouse gas emissions and specifically singles out developed nations140 as
having an obligation to take corresponding measures on the mitigation of climate change, by
limiting anthropogenic emissions of greenhouse gases and protecting and enhancing greenhouse gas sinks and reservoirs.141 The higher burden on developed nations to put in place
policies and measures to mitigate emissions is designed to demonstrate that developed countries are taking the lead in modifying longer-term trends in anthropogenic emissions.142 This
resulted in developed nations under the UNFCCC (Annex II) and Kyoto Protocol (Annex I)
accepting a higher obligation of binding emission reduction targets for the first Kyoto commitment period of 2008-2012.143
A differential norm is also present in Article 4.3 of the UNFCCC, which provides that
developed nations will give new and additional financial resources to developing nations to
meet the costs of implementing national greenhouse gas reductions and other commitments
under Article 4.1, and the reporting of this information to the COP under Article 12.144 The
special needs of developing nations arising from vulnerability to climate change are recognized in Article 4.4 with a further differential norm whereby developed nations are obliged to
assist developing nations in meeting the costs of adaptation to the adverse effects of climate
change.145 Importantly, Article 4.5 contains another differential obligation whereby developed
nations undertake to:
take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and know-how to other
Parties, particularly developing country parties, to enable them to implement the
provisions of the Convention 146
139
These other commitments include promotion and cooperation of technologies, practices and processes
that control greenhouse gas emissions, promotion of sustainable management of greenhouse gas sinks,
cooperation in preparing for adaptation, taking climate change into account in formulating social, economic, and environmental policy, promotion and cooperation in research on climate change, promotion
and cooperation in exchange of information on the climate system and climate change, and promotion
and cooperation in education, training and public awareness related to climate change. See supra note 21
at art. 4(1)(a)-(j).
140
As identified in Annex 1 of the UNFCCC, supra note 21.
141
UNFCCC, supra note 21 at art. 4.2(a).
142
Ibid.
143
Kyoto Protocol, supra note 5 at art. 3.1.
144
UNFCCC, supra note 21 at art. 4.3.
145
Ibid. at art. 4.4.
146
Ibid. at art 4.5.
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Article 4.5 contains a particularly strong differential norm as it makes developing nation compliance with commitments under the UNFCCC (which are already subject to differentiated
levels of obligation pursuant to the chapeau of Article 4) contingent upon developed nations
transferring environmentally sound technologies and know how. Article 4.7 even more specifically states that the extent of developing nation implementation of commitments will
depend on the effective implementation by developed country Parties of their commitments
under the Convention related to financial resources and transfer of technology.147 Article 4.8
further differentiates the special needs of certain developing nations148 in regard to climate
change impacts and the implementation of response measures and suggests full consideration
be given to funding, insurance and transfer of technology to meet the specific needs and concerns149 of those countries.
The UNFCCC therefore implements the principle of CBDR through the use of differential norms in key obligations of developed and developing nations in mitigation, adaptation,
reporting and financing activities. The differential norms in the substantive provisions of the
UNFCCC refer to superior capabilities of developed nations and greater needs of developing
countries in responding to climate change. The developed world, particularly the U.S., has
been reluctant to acknowledge responsibility for environmental damage as the basis for differential treatment in a particular provision of an agreement.150 Not surprisingly, the substantive provisions of the UNFCCC therefore fail to make specific reference to developed world
responsibility for climate change as a reason for differential treatment. However, the reference
in the preamble of the UNFCCC to developed states having the largest share of current and
historical emissions and developing states having low per capita emissions is a clear indication
of the continued relevance of contribution to environmental damage. The UNFCCC reference
to CBDR and the use of differential norms was bound to be controversial. Differentiation of
obligation in the UNFCCC involves a redistribution of resources from developed to developing nations to allow them to meet their commitments. The redistribution of resources required
for implementation of the CBDR principle is an important part of the substantive equity
concerns of the UNFCCC.
5. COMPARING THE CBDR COMPATIBILITY OF THE UNFCCC AND APP
As discussed in Section 2.3, for the claims of consistency between the UNFCCC and APP to
be justified the two agreements should be compatible. The following sections explore whether
there is significant conflict between the APP and UNFCCC with regard to the principle of
CBDR.
147
Ibid. at art. 4.7.
148
Ibid. at art. 4.8(a)(i). Particularly small island states; nations with low-lying coastal areas; nations with
arid and semi-arid areas; forested areas and areas liable to forest decay; countries prone to natural disasters;
countries with areas vulnerable to drought and desertification; countries with high urban atmospheric
air pollution; countries with fragile ecosystems; countries with economies highly dependent on income
from fossil fuels or consumption of fossil fuels and associated energy intensive products; and landlocked
and transit countries.
149
Ibid. at art. 4.8.
150
See French, supra note 127 at 36-37 for a discussion of the reluctance of the U.S. to accept Principle 7 of
the Rio Declaration.
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5.1 UNFCCC: Differentiated Responsibility and Justice

It is important to identify the meaning of CBDR that the Parties to the UNFCCC agreed to
in entering the treaty in 1992. Otherwise, interpretations of CBDR consistent with currently
perceived national interests of more influential nations may overshadow the meaning originally agreed. Unfortunately, the UNFCCC does not provide a definition of CBDR to assist
in clarifying the intended meaning.151 As discussed earlier, the Vienna Convention provides
that the ordinary meaning is to be given to the terms of the treaty in their context and in the
light of its object and purpose.152 The Vienna Convention also states that the preamble of a
treaty is a part of the context that may be considered and is useful in understanding the factual
background and motivation for a treaty.153 The preamble to the UNFCCC is instructive as it
specifically notes that developed nations have the largest share of current greenhouse emissions
(on both a national and per capita basis) and must take the first step toward a comprehensive
response, given their relative contribution to climate change.154 This suggests that the conception of CBDR agreed to in the UNFCCC is at least partly based on developed nations
bearing a heavier initial burden in responding to climate change due to their greater current
emissions. UN General Assembly resolutions referred to in the preamble of the UNFCCC also
confirm the importance placed on current levels of developed world emissions. For example,
UN General Assembly Resolution 45/212 1990, which founded the negotiating process for
the UNFCCC, contains the following recital in its preamble:
Noting further the fact that the largest part of the current emission of pollutants into
the environment originates in developed countries, and recognising therefore that
those countries have the main responsibility for combating such pollution 155
The founding document of the United Nations Conference on Environment and

Development (Rio Conference) process, UN General Assembly Resolution 44/228 1989,
is similarly mentioned in the preamble of the UNFCCC. The preamble of General Assembly
Resolution 44/228 is also instructive in highlighting developed world causation of global environmental problems, stating as follows:
Gravely concerned that the major cause of the continuing deterioration of the global
environment is the unsustainable pattern of production and consumption, particularly in industrialised countries
Affirming that the responsibility for containing, reducing and eliminating global
environmental damage must be borne by the countries causing such damage, must
be in relation to the damage caused and must be in accordance with their respective
capabilities and responsibilities 156
Developed nation responsibility for higher consumption and production practices is also raised
in the text of General Assembly Resolution 44/228:
151
See the definition section in the UNFCCC, supra note 21 at art. 1.
152
VCLT, supra note 62 at art. 31(1).
153
Ibid. at art. 31(2).
154
UNFCCC, supra note 21 at preamble, paras. 3 and 18.
155
UN GA, Res. 45/212, UN GAOR, 45th Sess., (1990) at preamble para. 8.
156
UN GA, Res. 44/228, UN GAOR, 44th Sess., (1989) at preamble.
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taking into account the fact that the largest part of the current emission of pollutants into the environment, including toxic and hazardous wastes, originates in
developed countries, and therefore recognising that those countries have the main
responsibility for combating such pollution;157
These UN resolutions referred to in the preamble of the UNFCCC strongly support the view
that greater developed world responsibility for current emission levels is a central basis for developed nations taking on higher responsibility under the UNFCCC conception of CBDR.158
A more contentious issue, however, is whether past emission levels were also intended as a
basis for differentiation of responsibility under the UNFCCC. The preamble to the UNFCCC
is instructive as it specifically notes that developed nations have the largest share of historic
greenhouse emissions.159 This reference to historical emission patterns of developed nations in
the preamble of the UNFCCC is suggestive of past emissions being of importance to the
operation of the treaty. Rio Principle 7 provides important context for interpreting Article 3
of the UNFCCC.160 Rio Principle 7 states that 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.161 The pressures that developed nations place upon the atmosphere
result from both past and current emissions patterns.162 Rio Principle 7 thus supports an interpretation of Article 3 of the UNFCCC that includes differentiation based on responsibility for
historic emissions. On balance, it is arguable that Article 3 of the UNFCCC was intended, at
least in part, to provide for differentiation between nations based on contribution to climate
change from historic emissions patterns.163 Developing nations have certainly argued strongly
for a causality-based interpretation of CBDR that includes consideration of historic emissions.164 The differentiated emission reduction targets developed under the Kyoto Protocol are
based upon historic contributions and capabilities.165 As Rajamani concludes, it is indeed arguable that CBDR is at least partly based on developed world responsibility for greater historic
levels of greenhouse gas emissions.166
It is important to bring to the foreground the substantive equity principles relied on in
Article 3 of the UNFCCC. As discussed in Section 3.1, Francks substantive equity concerns
the fairness of allocation of the burdens and benefits arising from an international agreement.167
157
Ibid. at clause 15(f ).
158
French, supra note 127 at 48.
159
UNFCCC, supra note 21 at preamble, paras. 3 and 18.
160
Lavanya Rajamani, Differential Treatment in International Environmental Law (Oxford: Oxford University
Press, 2006) at 138 [Rajamani, Differential Treatment].
161
Rio Declaration, supra note 124.
162
Rajamani, Differential Treatment, supra note 160 at 139 footnote 47.
163
Ibid. at 138.
164
Chukwumerije Okereke, Global Justice and Neoliberal Environmental Governance: Ethics, Sustainable
Development and International Cooperation (New York: Routledge, 2008) at 40-43 [Okereke].
165
166
Rajamani, Differential Treatment, supra note 160 at 138-139.
167
See pages 12-13 above.
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The concept of retributive justice is important in analyzing the substantive equity concerns
of the UNFCCC. Paterson explains that retributive justice entails that those who cause a
problem have the responsibility to make amends for it.168 Shue describes a similar principle of
retributive justice as follows:
If whoever makes a mess receives the benefits but does not pay the costs, not only does
he have no incentive to avoid making as many messes as he likes, but he is also unfair
to whoever does pay the costs. He is inflicting costs upon other people, contrary to
their interests and presumably without their consent. By making himself better off in
ways that makes others worse off he is creating an expanding inequality.169
The above analysis suggests that CBDR in the UNFCCC is at least partly based upon the
current and historic differences in emissions of developed and developing nations. The fact that
heavier obligations are placed upon developed nations in mitigating emissions and funding
adaptation and technology transfer is at least partly due to the greater role of developed countries in causing climate change. The substantive equity principles of the UNFCCC are therefore significantly grounded in retributive justice for past and current developed world harm to
the global climate system.
The UNFCCC conception of CBDR is also significantly based upon the notion of justice
as meeting needs. Okereke describes this conception of justice in the following terms:
In this approach, the obligation of justice is derived from the moral equality of
human beings irrespective of their race, creed and nationality The emphasis is on
the positive rights of citizens that is the kinds of rights that require state authorities
to do something in order to provide citizens with the opportunities and abilities to
act to fulfil their own potential as opposed to negative rights/liberty, which refers
to freedom from coercion and non-interference.170
The UNFCCC conception of CBDR clearly is based upon a notion of justice as meeting basic
needs in that developed states expressly recognize the special vulnerability of developing states
to the impacts of climate change and their lesser resources to adequately respond.171 Areas
such as Africa, the Asian and African mega-deltas, and small islands contain many poor states
and are predicted to be especially affected by climate change.172 Basic needs in terms of food,
housing and water are at risk from adverse affects of climate change such as changed rainfall
168
Matthew Paterson, Principles of Justice in the Context of Global Climate Change in Urs Luterbacher
& Detlef F. Sprinz, eds., International Relations and Global Climate Change (London: MIT Press, 2001)
at 121.
169
Henry Shue, Global Environment and International Inequality (1999) 75 International Affairs 531 at
533.
170
Okereke, supra note 164 at 48.
171
Bradley C. Parks & J. Timmons Roberts, Inequality and the Global Climate Regime: Breaking the
North-South Impasse (2008) 21:4 Cambridge Review of International Affairs 621 at 622 [Parks &
Roberts, Inequality]. See also Intergovernmental Panel on Climate Change, Climate Change 2007,
Synthesis Report: Summary for Policy Makers, online: Intergovernmental Panel on Climate Change <http://
www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf> [IPCC].
172
Ibid.
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patterns and sea level rises.173 The obligations of developing states in funding adaptation activities in developing nations, funding technology transfer and taking the lead in reducing emissions are at least in part a recognition that resources should be transferred to help protect basic
human needs in developing countries from the negative impacts of climate change. The higher
capabilities of developed nations to respond to climate change are also a reason for transferring
resources to protect the basic human needs of developing nations suffering climate change
effects.
5.2 APP: Differentiated Obligations Through Market Exchange
The APP Charter claims that the partnership is consistent with the UNFCCC.174 However,
aside from this broad claim, the founding documents of the APP175 are remarkable for the
lack of any reference to the specific provisions of the UNFCCC. Even without examining
CBDR, there are serious questions over whether the APP is consistent with the UNFCCC.
For example, the APP founding documents provide no detail on how the partnership will
specifically assist the overall objective in Article 2 of the UNFCCC to stabilize greenhouse
gas concentrations at a level that would prevent dangerous anthropogenic interference with
the climate system.176 Modelling carried out for the Australian Government to support the
2006 APP first ministerial meeting suggests that a global implementation of the APP approach
would at best result in global greenhouse gas emissions increasing to 100 per cent above 2005
levels by mid-century.177 In contrast to this modest ambition, there is a current view among
G8 political leaders that a global absolute emission reduction of at least 50 per cent is required
by mid-century to avoid substantial risk of dangerous climate change.178 Similarly, the APP
founding documents fail to explain how the adoption of intensity targets by developed nations
and the modest ambition of global emissions rising by 100 per cent over 2005 levels by midcentury represents a precautionary measure on climate change as required by Article 3.3 of
the UNFCCC.179 The APP approach supports a postponing of absolute emission reduction
targets in favour of intensity targets and technological improvements that are estimated to
provide at best a 100 per cent increase in global emissions by mid-century. A precautionary
173
For example, current predictions are that by 2020, 75 and 250 million people in Africa will be exposed
to increased water stress due to climate change and that in some African countries yields from rain-fed
agriculture could be reduced by up to 50 per cent. See IPCC, supra note 171 at 11.
174
175
Supra notes 4, 59 and 60.
176
UNFCCC, supra note 21 at art. 2. See also McGee & Taplin, Complement or Competitor?, supra note
6 at 183.
177
Brian S. Fisher et al., Technological Development and Economic Growth, ABARE Research Report 06.01,
Inaugural Ministerial Meeting of the Asia Pacific Partnership on Clean Development and Climate, (January
2006), online: Abare Economics <http://www.abareconomics.com/publications_html/climate/climate_
06/06_climate.pdf> at 34. See also McGee & Taplin, Complement or Competitor?, supra note 6 at
183.
178
Japan, Ministry of Foreign Affairs, G8 Hokkaido Toyako Summit Leaders Declaration, online: Ministry of
Foreign Affairs <http://www.mofa.go.jp/policy/economy/summit/2008/doc/doc080714__en.html> at
34.
179
UNFCCC, supra note 21 at art. 3(3).
McGee & Taplin
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approach to climate change policy arguably requires a significantly stronger commitment to

global emissions reduction.
There is, however, an indirect reference to the UNFCCC in the APP founding documents.
The APP Vision Statement refers to the necessity for the partner nations to pursue development
as noted in the Delhi Declaration on Climate Change and Sustainable Development (Delhi
Declaration).180 The Delhi Declaration was issued at the Eighth Conference of the UNFCCC
parties in India in October 2002.181 It states that economic and social development and
poverty eradication are the first and overriding priorities of developing nation parties182 who
also face an increased risk of negative impacts of climate change.183 The Delhi Declaration
reaffirms a commitment to CBDR184 and the special needs of developing nations arising from
the adverse effects of climate change.185 It also notes the necessity for developed nations to
further implement UNFCCC commitments by providing financial resources, technology and
capacity building in developing nations.186 As the APP implicitly claims to build upon the
Delhi Declaration, it should provide for differentiation of obligations between developing and
developed nations consistent with the UNFCCC conception of CBDR. This would include
support for higher levels of obligation for developed nations based at least partly on retributive
justice grounds.
Yet, the APP founding documents formally provide a similar level of obligation for all
seven partner nations. The partner nations of the APP have differing emission patterns, technological capacities and energy needs, but each is treated as an equal partner to the agreement.
The level of resources committed to APP Task Force projects is largely a matter for later contractual negotiation between private and public sector entities of the seven nations involved in
such projects. Any difference in the benefits that flow from the development of technologies
under the APP is also a matter of contractual negotiation among the private and public entities
of the seven partner nations involved in APP projects. The strong encouragement of private
sector interests in APP activities suggests that commercial concerns for profit maximization
will play a significant role in allocation of the benefits of APP activities. A number of the
developed member states of the APP, particularly Japan, South Korea and the United States,
have considerable capacity in technology innovation. Corporations from these nations with
capacity for technological innovation can be expected to benefit commercially from expanded
opportunities for trade in environmental technologies and services to developing nations.187
The APP founding documents contain no concessional treatment for developed nations or
their corporations and instead allow later commercially-based bargaining to allocate the benefits and burdens of partnership activities.
180
UNFCCC, The Delhi Ministerial Declaration on Climate Change and Sustainable Development (2002),
online: UNFCCC <http://unfccc.int/cop8/latest/1_cpl6rev1.pdf> [Delhi Declaration].
181
Ibid.
182
Ibid. at 1.
183
Ibid.
184
Ibid. at para. d.
185
Ibid. at para. g.
186
Ibid. at para. m.
187
McGee & Taplin, Complement or Competitor?, supra note 6 at 188.
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The APP has its own implicit substantive equity concerns that differ significantly from
the UNFCCC conception of CBDR. In failing to consider the fairness of differences in past
and current emission patterns in the developed and developing world, the APP is tacitly supporting a continuation of emission patterns heavily skewed in favour of developed nations.
The APPs failure to raise the fairness of past emission patterns rests upon a substantive equity
principle that Okereke describes as justice as property rights.188 This conception of justice
provides that if wealth is acquired through activity that was legal at the time it was carried out
then it is beyond challenge regardless of any resultant inequality it may create. The wealth of
developed nations built up by fossil fuel use over the period from the industrial revolution to
the Kyoto Protocol in 1997189 is therefore, at least on this argument, beyond challenge. Okereke
also describes another form of substantive equity that is essentially the outcome of a rational
bargaining process between self-interested agents:
Justice as mutual advantage (sometimes called justice as self-interested reciprocity)
proposes that the rules of justice can be derived from the rational agreement of
agents to co-operate with one another in order to further their self-interest. It takes
as its foundation the notion that everybody has his or her own conception of the
good and that justice is best conceived as that thin framework which provides the
chances and opportunities for individual utility maximisation in the maximally nonconflictual environment.190
The APP also implicitly adopts this form of substantive equity in that self-interested commercial bargaining among APP participants is assumed to provide a suitable and just outcome in
response to climate change. The APP contains no overarching collective goal for international
reduction of greenhouse gas emissions, such as the UNFCCC objective to stabilize emissions
at a safe level,191 or the Kyoto goal of reducing developed nation emissions by 5 per cent below
1990 levels by the period 2008-2012.192 Okereke comments:
It is at once clear that theorists of justice as mutual advantage do not believe that
individuals (let alone states) can have an overarching notion of morality or idea of
the good life to which agents might appeal, independent of what they can gain on
the platform of rational egoistic bargaining.193
The APP assumes that the contractual bargaining of APP participants in pursuit of mutual
advantage in developing and diffusing technology will provide an adequate and just policy
response to climate change. The APP does not attempt to provide for individual state responsibility based upon any wider substantive equity principles such as retributive justice or meeting
basic human needs. The burdens and benefits of APP Task Force activities are largely allocated
through commercial-based contractual bargaining. The APP therefore adopts a substantive
equity position best described as justice as an outcome of mutual advantage through market
exchange.
188
Okereke, supra note 164 at 40-43.
189
Arguably, the Kyoto Protocol made illegal the emission of greenhouse gases by developed nations in the
sense that there was no longer an unfettered ability to pollute as existed in the pre-1997 period.
190
191
UNFCCC, supra note 21 at art. 2.
192
Kyoto Protocol, supra note 5 at art. 3.1.
193
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Volume 5: Issue 1
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Moreover, the APP also emphasizes a form of procedural equity (i.e. fairness of process)
aimed at facilitating commercial bargaining and formation of contracts for technology development and transfer of management practices. A substantial number of the initial activities of
the APP task forces involve the sharing of information and setting up demonstration projects
so as to inform potential market participants of the benefits of particular technologies and
management practices.194 Significantly, the Chinese government expressed some dissatisfaction
with this at the Second APP Ministerial meeting in New Delhi in October 2007:
China finds that the focus of most of the Partnership projects is on soft activities
like information sharing, sectoral assessments, capacity building and standardization. There are almost no joint R&D projects between developed and developing
Partnership countries.195
This information sharing and demonstration is designed to disseminate information so that

potential market participants are better informed to make decisions about the purchase of
cleaner energy technologies and practices. The level of Francks procedural equity (i.e. fairness
of process) of market activity is enhanced by this greater access to information by potential market participants. The developed nations of the APP may decide to take on higher
levels of obligation in funding the information sharing and APP demonstration projects.196
However, any higher level of obligation of developed nations in APP projects is voluntary and
not based on substantive equity principles arising from differing responsibility, capacities or
needs between states.
The APP emphasis on procedural equity in market exchange and lack of reference to
retributive justice means that any difference in obligation between APP participants will be
most closely associated with Stones rational bargaining CBDR. Differentiation in obligations between APP participants will occur, but is simply due to the contracting parties having
different interests and abilities in entering contracts for APP Task Force projects. Contract
formation through bargaining between APP participants occurs up to the point where cooperative gains from APP activities are exhausted. Formation of contracts by the various public
and private sector participants in the APP thereby increases the cooperative gain in benefits
from APP activities. Rational bargaining CBDR tends to promote economic efficiency by
seeking to maximize individual utility satisfaction in providing a response to climate change.
Yet despite claims of superior economic efficiency, there must be serious doubts that fragmented individual decisions of the public and private sector participants of APP projects will
194
For example, of the seven initial projects undertaken by the Aluminum Task Force of the APP, most
activities are directed at information sharing and exchange. See APP Project Roster, Aluminum Task
Force Action Plan, online: Asia-Pacific Partnership <http://www.asiapacificpartnership.org/pdf/Projects/
Aluminum%20Task%20Force%20Action%20Plan%20_02%20May%2007_.pdf >.
195
Gao Guangsheng, Director General of the Office of National Coordination Committee on Climate
Change, China Country Statement (speech delivered at the 2nd Ministerial Meeting of the Asia-Pacific
Partnership, 15 October 2007), online: Asia Pacific Partnership <www.asiapacificpartnership.org/pdf/
new_delhi/Ministerial%20speech_Gao%20Guangsheng_2007_10_15.pdf>. The acronym R & D in
this quotation refers to research and development.
196
For example, the first four projects described in the APP Cement Task Force Action Plan indicate that
resources will be supplied by developed nation partner states. See the Asia-Pacific Partnership, Cement
Task Force Action Plan (2006), online: Asia Pacific Partnership <http://www.asiapacificpartnership.org/
pdf/Projects/Cement%20Task%20Force%20Action%20Plan%20_27%20Oct%2006_.pdf> at 8-14.
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provide a sufficient collective response in reducing emissions. Individual decision making of

APP participants may be economically efficient in maximizing individual utility of relevant
actors, yet still fail to provide an adequate collective response to climate change. It is quite
possible that the individual corporate bodies participating in APP projects may not properly
understand or be willing to implement with sufficient urgency the actions recommended by
climate scientists. The pursuit of individual economic efficiency by corporations in particular may therefore not be enough to achieve difficult cuts in greenhouse gas emissions. Strict
adherence to economic efficiency may need to be shelved in favour of wider substantive equity
principles (such as retributive justice or meeting basic needs) in order to obtain widespread
international agreement on deep cuts in greenhouse gas emissions. Recent work by Bradley C.
Parks and J. Roberts Timmons has highlighted the importance of aggressive efforts to address
issues of inequality and justice in order to overcome the current impasse between developed
and large developing nations over further emission reduction efforts.197
The participation of government organizations in the APP Policy and Implementation
Committee and the role of public research bodies in APP activities provide potential for a
stronger emphasis upon equity concerns in the allocation of the gains from APP activities.
There is an opportunity for the government and public research bodies of the APP to place
greater emphasis on retributive justice or greater capacities in taking on obligations and allocating the benefits of cooperative gains with developing nations. It is therefore possible that some
APP activities will move toward Stones equitable CBDR, that is, allocate the gains from
cooperation at least in part on the basis of greater capacities, greater needs or retributive justice.
However, the failure of the APP founding documents to expressly include the responsibility,
capabilities and needs criteria of CBDR is a significant barrier to strengthening substantive
equity concerns within APP activities.
6. CONCLUSION
The emergence of the APP is a very significant development in international climate change
policy. The APP is the most wide-ranging international climate change agreement outside the
UNFCCC framework198 in that it has the potential to develop alternative national goals for
greenhouse gas emission reductions. The principle of CBDR as agreed to in the UNFCCC
is heavily based on three substantive equity concerns: in particular, seeing that the burdens
and benefits of the human response to climate change reflects differing responsibilities for
the causes of climate change, capabilities to respond, and needs arising from vulnerability to
impacts and development disparities. The UNFCCC conception of CBDR is therefore heavily
weighted toward substantive equity considerations including retributive justice and justice as
meeting basic human needs. This approach was borne out in the differentiated responsibility
for developed world emission reductions in the subsequent Kyoto Protocol.
197
Parks & Roberts, Inequality, supra note 171 at 622. See also Bradley C. Parks & J. Timmons Roberts,
A Climate of Injustice: Global Inequality, North-South Politics and Climate Policy (Cambridge, Mass:
MIT Press, 2007).
198
There are other technology cooperation partnerships but none seeking to articulate substantive goals such
as national greenhouse gas intensity targets. See McGee & Taplin, APP & U.S. Climate Change Policy,
supra note 39.
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Volume 5: Issue 1
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In contrast, CBDR is not directly referred to in the APP founding documents. Differences
in the level of obligations accepted by the APP nations and participating organizations will arise
from self-interested bargaining to facilitate trade relationships and market activity. Differences
in the level of obligations accepted are based on conceptions of justice as property rights and
justice as mutual advantage that are supportive of an individualist, contractarian approach to
international climate change policy. The APP founding documents contain no provisions that
are supportive of higher levels of obligation for developed nations based upon responsibility for
emissions patterns or to protect basic human needs from the impacts of climate change. The
APP reliance on self-interested bargaining to facilitate trade relationships leads to an emphasis
on procedural equity in market participation. In particular, many of the APP task force activities are directed at information gathering and exchange in markets for cleaner technologies
and management practices. These APP activities are directed at lessening informational disadvantages of potential participants in markets for trade in these technologies and management
practices. However, the substantive equity principles of retributive justice and justice as
meeting needs inherent in the UNFCCC conception of CBDR are essentially absent from
the APP founding documents and activities. The APP failure to support these key substantive
equity principles means that it is not consistent with the UNFCCC conception of CBDR.
There is no doubt that the necessity to engage major developing nations such as China and
India in emission mitigation commitments represents a significant challenge to the international climate change regime. The recent rapid economic growth of these nations is an important factor in negotiations for post-2012 commitments for both developed and developing
nations. The APP technology partnership model has the potential to significantly influence the
shape of the post-2012 climate change regime. However, if this is to occur, it is important that
the relationship of the APP with the existing treaty regime is clear.
This article has demonstrated that the APP represents a significant retreat from substantive
equity concerns in international climate change policy as articulated by the UNFCCC conception of CBDR. The substantive equity concerns of the UNFCCC are replaced by an emphasis
on procedural equity of participation in self-interested bargaining over commercial arrangements for the development and diffusion of new technologies. Canadas recent decision to join
the APP is a clear demonstration of forum shopping, and indicates that the country favours the
APP model over the Kyoto process. The capacity for key developed nations, including the U.S.
and Canada, to pursue a retreat from substantive equity concerns of the UNFCCC through
participation in the APP should be made clear. Any significant retreat from the substantive
equity concerns of the UNFCCC has the potential for substantial impact on the post-2012
international negotiations on coordinated climate change response strategies, and must be the
subject of careful deliberation by the international community.

The Asia-Pacific Partnership On Clean Development and Climate A Retreat From The Principle of Common But Differentiated Responsibilities

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The Asia-Pacific Partnership On Clean Development and Climate A Retreat From The Principle of Common But Differentiated Responsibilities

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The Asia-Pacific Partnership on Clean Development

and Climate: A Retreat from the Principle of

The Asia-Pacific Partnership on Clean Development

founding documents and institutional structure of

Le Partenariat Asie-Pacifique sur le dveloppement

article analyse les documents fondateurs ainsi que

Electronic copy available at: http://ssrn.com/abstract=2619368

Electronic copy available at: http://ssrn.com/abstract=2619368

McGee & Taplin

he Asia-Pacific Partnership on Clean Development and Climate (APP) was launched

McGee & Taplin

Baumert, supra note 11 at 12.

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2. THE UNITED NATIONS CLIMATE REGIME AND THE ASIA-PACIFIC PARTNERSHIP

UNFCCC, supra note 21 at art. 2.

Ibid. at arts. 4(1), 5 and 6.

Meaning in transition from a centrally planned to market economy.

UNFCCC, supra note 21 at art. 4(2).

UNFCCC, supra note 21 at art. 4(3)-(5).

Kyoto Protocol, supra note 5.

UNFCCC, Kyoto Protocol: online: UNFCCC <http://unfccc.int/kyoto_protocol/items/2830.php>.

Kyoto Protocol, supra note 5 at art. 3(1) and Annex B.

UNFCCC, Bali Action Plan, online: UNFCCC <http://unfccc.int/files/meetings/cop_13/application/

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APP Delhi Communiqu, supra note 2.

APP Charter, supra note 4.

Ibid. at clause 2.1.1.

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APP Charter, supra note 4 at clause 4.4.

Ibid. at clauses 4.2 and 4.4.

APP Charter, supra note 4 at clause 4.2.

APP Charter, supra note 4 at clause 4.3.

See the APP Organizational Chart below.

APP, Work Plan, supra note 44 at 1.

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2.3 Claims of Consistency between the APP and UNFCCC

Asia-Pacific Partnership, Organizational Chart (2008), online: Asia-Pacific Partnership <http://www.asiapacificpartnership.org/pdf/OrganizationalChart_June2008.pdf>.

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APP Charter, supra note 4 at clause 1.1.

APP Charter, supra note 4.

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Ibid. at art. 31(1).

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in relation to issues of equity in the international response to climate change. It is therefore

Shelton, Equity, supra note 68 at 660.

Shelton, Equity, supra note 68 at 660.

Franck, supra note 70 at 352.

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3.2 The Role of Norms in International Environmental Law Doctrine

Magraw, supra note 77 at 74.

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4. COMMON BUT DIFFERENTIATED RESPONSIBILITIES

Sands, supra note 85 at 286.

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This emphasis on contribution to international environmental problems is a contentious issue

Matsui, supra note 73 at 156.

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Figure 2 provides a schematic summary of Sands description of the two elements of

Second Element: Differential norms

4.2 CBDR: Substantive Equity v. Economic Efficiency?

Christopher J. Stone, Common but Differentiated Responsibilities in International Law (2004) 98

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