Written by Alvin Leong (LLM, JD), Fellow at Pace Center for Environmental Legal Studies. He can be contacted at email@example.com
The Group of 77 and China (G-77 & China) have advocated for the inclusion of common but differentiated responsibilities (CBDR) as an “overarching principle” of the SDGs. However, many developed countries object to such inclusion and take the position that CBDR is a principle that is limited to the field of environmental protection, and thus cannot be an “overarching principle” for goals that seek to integrate the economic, social and environmental dimensions of sustainable development.
The Rio+20 outcome document, The Future We Want, provided the mandate for the SDGs. Paragraph 15 of The Future We Want states: “We reaffirm all the principles of the Rio Declaration on Environment and Development, including, inter alia, the principle of common but differentiated responsibilities, as set out in principle 7 thereof.”
Principle 7 of the Rio Declaration states: “States should cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.”
The advanced economies are correct in that the language in Principle 7 of the Rio Declaration involves only the environmental dimension and thus the reference to CBDR therein should be read to be limited to the field of environmental protection. Consequently, the reference in Paragraph 15 of The Future We Want, which pulls in Principle 7 of the Rio Declaration, would only pull in the concept of CDBR as applicable in the field of environmental protection. In other words, the cross reference cannot pull in more than what was said in the referred-to text.
However, the analysis should not stop there. We should also look carefully at Paragraph 246 of The Future We Want, which states, in pertinent part: “We further recognize the importance and utility of a set of sustainable development goals, based on Agenda 21 and the Johannesburg Plan of Implementation, which fully respect all the Rio Principles, taking into account different national circumstances, capacities and priorities…[emphasis added]”
At the Rio+20 conference, Barbados had proposed that this paragraph include a reference to CBDR so the text would read: “We further recognize the importance and utility of a set of sustainable development goals … which fully respect the Rio principles, in particular common but differentiated responsibilities …[emphasis added]”
The European Union, Norway, Japan, the United States and Switzerland questioned the specific reference to CDBR and asked for its deletion. The EU proposed alternative language: “taking into account international realities, capacities, and development.” The G-77 and China expressed concern and reaffirmed that the CBDR principle was a crucial issue; ultimately the final text that was agreed contained the phrase “taking into account different national circumstances, capacities and priorities”.
Under well-accepted principles of interpretation, words should be accorded meaning and should not be treated as surplus to the text and thereby rendered meaningless. Accordingly, we should read the phrase “taking into account different national circumstances, capacities and priorities” as containing meaning beyond that of the Rio Principles, as to do otherwise would render the phrase as surplus and lacking in meaning. The Rio Principles do not contain that phrase and therefore that phrase is not a cross-reference; the Barbados proposal, on the other hand, was clearly a cross-reference to CBDR as contained in the Rio Principles. As such, the compromise language has a very different effect from the originally proposed language in that the final text states a concept of differentiation distinct from CBDR as embedded in the Rio Principles, and therefore is not bounded by nor limited to the field of environmental protection.
In the context of Paragraph 246, this concept of differentiation arguably expresses an “overarching principle” for the SDGs, on par with the other sources listed therein: Agenda 21, the Johannesburg Plan of Implementation, the Rio Principles, international law, commitments already made, and the outcomes of major summits. Similar concepts of differentiation (with some variation in language) are found in Paragraphs 56, 58(b), 63, 103, 127, 239 and 247 of The Future We Want, which reinforces the notion that the differentiation concept is an “overarching principle”.
CBDR and its more nuanced version in the United Nations Framework Convention on Climate Change (UNFCCC), CBDRRC (common but differentiated responsibilities and respective capabilities), has proved to be an extremely contentious topic in the UNFCCC process and it should come as no surprise that there is resistance to its invocation in the SDG process. While “CBDR” as a formulaic label does not quite serve the purpose in the SDG framework that the G-77 and China would like it to serve, it does not mean that the differentiation concept that runs through The Future We Want could not serve as CBDR’s functional equivalent in its application to all three dimensions of sustainable development. While the contours of this differentiation concept are not yet well defined, the language, as written, certainly does not exclude the notion that different national circumstances, capacities and priorities could mean varying levels of responsibilities à la CBDR.
Where do we go from here on CBDR? One possibility is that CBDR will evolve, despite opposition from advanced economies, to extend beyond the environmental dimension. The other possibility is that CBDR will remain principally an environmental law principle, despite the advocacy of the emerging economies, but a functional conception of differential responsibilities will take hold in the field of sustainable development. In either case, the post-2015 development agenda has a unique opportunity to establish an “overarching principle” of differential responsibilities within a universal agenda to guide global development and manage the global commons towards the future we want.
 United Nations Conference on Sustainable Development, Rio de Janeiro, Brazil, 20-22 June, 2012.
 SDGs – divergences over CBDR principle and listing of priorities continue, TWN Rio+20 News Update, 16 June 2012, http://www.twnside.org.sg/title2/rio+20/news_updates/TWN_update12.pdf.