Introduction

Globalisation and the current global economic order have disproportionately harmed third-world countries. Today, just three billionaires from developed Northern states hold more wealth than the combined economic output of all the world’s least-developed countries, representing over 600 million people. International law is playing a pivotal role in reinforcing and legitimising the unequal power structures and unjust processes that continue to exacerbate the North-South divide. International financial institutions that enforce Neo-liberal policies now severely restrict the policy-making power and democratic choice of Southern States. In essence, the political and economic sovereignty of the Global South stands gravely compromised by Northern-driven international laws and institutions. Unfortunately, the field of Third World Approaches to International Law (TWAIL) has thus far been unable to propose an alternative vision that protects developing countries against such domination.

Over decades of environmental treaty-making and global policy formulations, TWAIL scholars have compellingly underscored issues of equity, Northern domination of discourses, double standards favouring prosperous industrial economies, and disproportionate burdens placed on poorer nations. Concepts like Common But Differentiated Responsibilities (CBDR) were also propagated by TWAIL to demand climate action from wealthy Northern states first. However, implementation remains lacking. While TWAIL offers a vital theoretical lens to highlight and tackle environmental injustices against the Global South, this paper contends that the initiatives taken by the TWAIL in the realm of international environmental law have not successfully translated into tangible reforms that effectively safeguard the interests of developing nations in practical terms.

International Environmental Law: Tracing its Genesis and the Persistent North-South Divide

Mainstream international environmental law reflects a Western-centric conceptualisation of the environment shaped by the emergence of environmentalism in America and Europe in the 1960s-70s. The 1972 Stockholm Conference globalised this Western environmentalism, marking the origins of modern international environmental law. However, such Western environmental conceptualisations fail to grasp perspectives from the Global South shaped by vastly different historical experiences under colonialism and ongoing economic domination. The Global North over-exploited the South’s natural resources to fuel its development, entrapping Southern nations in poverty and environmental damage while limiting their prospects – reflected in global crises like climate change. Southern environmental woes also arise from export-oriented production benefiting Northern corporations over local populations.

Thus, while the industrialised North carries disproportionate blame for ecological degradation, vulnerable Southern societies face environmental injustices. These include disproportionate exposure to pollution due to the South’s geographical vulnerabilities, limited regulations, ongoing extraction of resources to meet Northern demands, and transferring of toxic waste. Southern nations also face exclusion from global environmental decision-making and inadequate enforcement of protections. Moreover, environmental degradation interlinks with deeper racial, economic and political marginalisation.

Employing TWAIL to Overcome Systemic Environmental Injustice

TWAIL has emerged as an influential discourse challenging the supposed impartiality and universal applicability of mainstream international law. Similar to other postcolonial scholarships, TWAIL links past colonial injustices to present-day global imbalances in economic, political, and social power between the affluent, industrialised Global North and less developed Global South. Environmental justice originated in the 1980s when US-based movements and academic fields responded to the concentrated siting of waste facilities in marginalised racial minority communities. Following the 1982 Warren County protests against locating a PCB landfill in a predominantly African-American town in North Carolina, civil rights leader Benjamin Chavis introduced the term “environmental racism” to describe discriminatory environmental policy making. Therefore, early environmental justice advocacy spotlighted how race and class impacted the distribution of environmental burdens, with sociological roots later expanding into multiple disciplines, including legal studies.

By the early 1990s, the terms “environmental equity” and “environmental justice” had gained traction over “environmental racism” in academic and activist circles. This conceptual shift indicated both an expansion and diffusion of the founding environmental justice principles – simultaneously extending protection to vulnerable communities beyond just racial minorities while also incorporating justice notions beyond distributional fairness. Whereas “environmental racism” narrowly focused on an unequal distribution of environmental hazards specifically impacting communities of colour, the emergent terms “equity” and “justice” implied more comprehensive applications. Environmental “equity” suggests fair sharing of pollution and resource degradation risks across all segments of society rather than eliminating them outright. Thus, the terminology shift represented a broader tent for advocacy coalitions amidst a subtle dilution of the original radical claims centering on racial discrimination in environmental policy making.

Addressing the challenges of environmental injustice and equity, the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC) has emerged as a crucial framework. This principle has played a pivotal role in shaping international environmental governance. Normatively, it has significantly influenced discussions on climate justice, offering a framework where more influential actors shoulder greater responsibilities in addressing issues they have contributed to. Politically, CBDR-RC have been instrumental in shaping global environmental agreements, such as the Kyoto Protocol and the Paris Agreement, by urging affluent nations to bear the costs of climate mitigation efforts. Scholars delving into CBDR often perceive it as an emblematic instance of a “taken-for-granted” global norm. This perspective implies that while the norm may be formally acknowledged, its practical implementation falls short of the intended standards.

Common but Differentiated Responsibilities and Respective Capabilities: An Unfulfilled Pursuit of Environmental Justice

Attempting to sway everyone may result in convincing no one. When examining the concept of “common but differentiated responsibility and respective capabilities” (CBDR-RC), this cautionary note refers to the diplomatic and negotiating context in which this idea has gradually evolved. It may shed light on its current standing and significance in the legal discourse. Labeling CBDR-RC as a foundational principle of the climate change regime would misinterpret its legal origins. When it emerged in international discussions, it was a political agreement grounded in ethical considerations, aiming to unite states in shared objectives while recognising their disparate development and capacities. Over time, the notion has retained its political nature and has failed to clearly define or solidify the legal obligations it was intended to encompass.

Initially, during the adoption of the Kyoto Protocol, CBDR-RC held significance in principle, but its practical legal implementation proved highly contentious. The United States outright rejected it, and while the majority reluctantly accepted its incorporation, they did so without accepting its legal implications. Consequently, at that time, the CBDR-RC principle lacked legal validity. In the present day, the formulation of this concept in the Paris Agreement of CBDR-RC, in the light of different national circumstances, suggests a pragmatic approach aimed at bridging gaps between developed and developing nations. However, the formulation has become so vague and ambiguous that states essentially agree on something devoid of meaning and, therefore, fails to bring out any result.

In the 1990s, the fundamental concept behind CBDR-RC appeared relatively straightforward. States designated as ‘developed’ were expected to take a leading role in addressing climate change and its adverse impacts. This understanding implied a top-down determination of a state’s legal obligations grounded in an objective assessment. The Kyoto Protocol exemplified this approach by categorising parties into developed and developing groups, establishing new legal obligations for the former while reiterating older obligations (from the UNFCCC) applicable to all. The manifestation of the CBDR-RC principle in the Protocol involved provisions that distinguished between developed and developing states concerning fundamental obligations, such as emission reduction targets and timetables. The optimistic interpretation of the CBDR-RC’s legal embodiment in the Protocol rested on its seemingly straightforward legal foundation: Principle 7 of the 1992 Rio Declaration and Article 3(1) of the UNFCCC. However, clarity in principle did not automatically translate into acceptance in practice. In reality, the differential treatment embedded in the primary obligations for climate change mitigation was contentious from the outset. The top-down determination of a state’s obligation based on an objective assessment faced two significant challenges.

Firstly, for the CBDR-RC principle to carry legal weight, it needed to be grounded in an accepted theory of differentiation. However, reality contradicted this expectation, with varying opinions on whether differentiation should stem from differences in economic development and capabilities, contributions to greenhouse gas emissions, or a combination of both.  If each party to the UNFCCC held a different perspective, there could be around 195+ interpretations of what differential treatment meant for climate change regulation. Secondly, building on the disagreement regarding the theory of differentiation, the legal implications of the Kyoto Protocol became highly contested. The Protocol was criticised as a flawed implementation of the CBDR-RC, assigning obligations to a minority of states while exempting the majority from any responsibilities.

The rejection of the Kyoto Protocol by the United States served as a clear indication of resistance to the legal implications associated with that type of differential treatment. This resistance from the U.S. was evident long before the Protocol’s negotiation, as demonstrated by the country’s stance on Principle 7 of the Rio Declaration. The United States articulated its perspective through an interpretative statement, asserting that the principle merely acknowledged the ‘special leadership role of developed countries’ due to their ‘wealth, technical expertise, and capabilities.’ According to this interpretation, Principle 7 did not imply any acknowledgment of international obligations or any reduction in the responsibility of developing countries. Over time, other developed nations gradually distanced themselves from the Kyoto Protocol’s rigid division approach.

The inability to reach a legal resolution at the Copenhagen COP in 2009 further exemplifies this trend. The failure was attributed to “deep disquiet over the nature and extent of differentiation in the climate regime, particularly the differentiation in central obligations embodied in the Kyoto Protocol.” Overall, debates over the content and nature of the obligations associated with this principle have sparked discussions about its legal status. The diplomatic phrasing of CBDR-RC has played a role in steering climate negotiations but needed to have the characteristics of a legal rule, lacking legal certainty.

The current lack of legal relevance of the notion can be attributed to a progressive loss of meaning. Initially clear in principle, stating that developed states should lead in responding to climate change, the concept undergoes a gradual dilution after the adoption of the Kyoto Protocol. The present formulation in the Paris Agreement, expressed as ‘common but differentiated responsibilities and respective capabilities, in the light of different national circumstances,’ is so vague and ambiguous that it can be deemed legally irrelevant. Operating on this anticipated and intentional ambiguity, CBDR-RC is now more accurately perceived as a diplomatic understanding that underscores a general call for equity.

Conclusion

The endeavours undertaken by third-world countries, especially by scholars, are laudable in theoretical frameworks. However, in the practical realm, the approaches advocated by Third World Approaches to International Law (TWAIL) seem to lack substantial impact. Examining these approaches within the context of international environmental law, initiatives like Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC), which held the potential to significantly benefit third-world nations, failed to crystallise into a recognised legal principle. Despite the ambiguity raised by developed nations, asserting that the principle couldn’t be translated into a legally binding norm, the Kyoto Protocol demonstrated a clear articulation of differentiated obligations for developed nations. Nevertheless, the northern bloc systematically resisted compliance, leading to the current state where this principle lacks the legal standing it initially aimed for. Consequently, the author posits that, in practice, developed countries appear to prioritise their interests, merely paying lip service to the efforts advocated by TWAIL on paper.

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Alka Khangembam is a law student at the National Law School of India University, Bangalore.

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Image: Milton Glaser (1970), NY Times and Poster House