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Anniversary Issue
1.
INTRODUCTION
Many multilateral environmental agreements (MEAs) include differentiated rules and obligations for different groups of countries. The basis of this differentiation in responsibility is the recognition, already found in Principles 6 and 7 of the 1992 Rio Declaration,1of countries' differing circumstances and levels of contribution to environmental degradation - the so-called principle of common but differentiated responsibilities (CBDR principle or CBDRs) of states. The resulting differential treatment may consist of less stringent obligations, different timing in the application of those obligations (such as grace periods, or priority implementation in specially affected countries), and/or international assistance in terms of financing, capacity building or technology transfer.2In addition, differential treatment provisions may appear explicitly in treaty texts, but they may also be implicit, in the sense that the provision establishes identical treatment for all parties, but its application allows consideration of characteristics that vary from country to country (such as a state's technical and regulatory ability, its resource availability or, more generally, its national circumstances).3
Given the high costs associated with addressing climate change and the extremely unequal distribution of the costs and benefits of doing so, it is not surprising that the intergovernmental climate change regime - established under the 1992 United Nations Framework Convention on Climate Change (UNFCCC)4and its 1997 Kyoto Protocol5- represents the most extreme example of differential treatment between developing and developed countries.6A defining centrepiece of the regime - both in procedural and in political terms7- is the categorization of its parties into three groups of countries - those listed in Annex I to the Convention (the so-called 'Annex I countries'), those listed in Annex II (which is a subset of Annex I), and those not listed in either (the 'non-Annex I countries'). These groups were differentiated in terms of their central emissions reduction and reporting obligations, implementation rules, and provision of support.8
It was clear from the outset that both the UNFCCC and the Kyoto Protocol would not be sufficient to effectively address climate change, but were rather the starting points of a 'dynamic instrument for long-term climate policy' that would be adapted to accommodate stronger Annex I party commitments and new actions by non-Annex I...