Washington and Lee Journal of Energy, Climate, and the

Environment
Volume 6 | Issue 1

Article 6

9-2014

The IMOs Climate Change Challenge: Application

of the Principle of Common but Differentiated
Responsibilities and Respective Capabilities
Stathis N. Palassis
University of Technology Sydney

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The IMOs Climate Change Challenge:

Application of the Principle of Common
but Differentiated Responsibilities and
Respective Capabilities
Stathis N. Palassis*
Abstract
Since 1997 the International Maritime Organization, the
United Nations agency responsible for the regulation of the
international shipping sector, has been developing rules for the
reduction of the sectors greenhouse gas emissions. Significant
difficulties have, however, emerged in the creation of appropriate
economic instruments for reducing its greenhouse gas emissions,
bringing to the forefront the application of the principle of
common but differentiated responsibilities and respective
capabilities (CBBDRC). A key principle within international
climate change law, CBDDRC allows developing States, least
developed States and the most environmentally vulnerable to be
differentially treated based on their special situation and needs.
Developing States, within the International Maritime
Organization, rely on this principle in questioning the
appropriateness of application of uniform international shipping
standards to the greenhouse economic instruments currently in
development, viewing this uniformity as economically
disadvantageous to them. Developed State members, on the other
hand, maintain the traditional view that all of the Organizations
instruments, including those for the reduction of ship-source
greenhouse gas emissions, must have uniform application to all
States. This article addresses the difficulties that have arisen in
creating economic instruments for the reduction of the
international shipping sectors greenhouse gas emissions and
highlights the significant compatibility issues between the work
of the International Maritime Organization and international
climate change law. By providing a contemporary analysis of the
international law principle of CBDDRC and its application to the
international shipping sector it is argued that the International

160

CLIMATE CHANGE CHALLENGE

161

Maritime Organization cannot currently attain the synthesis

necessary to effectively apply the CBDDRC principle. The article
advocates that further work is needed in identifying the legal
content of the CBDDRC principle and its constituent elements
that are necessary before States can effectively negotiate the
formation of a differential layer of responsibilities for developing
States.

Table of Contents
I. Introduction .............................................................................. 161
II. Common but Differentiated Responsibilities ........................ 164
A. Identification of Common but Differentiated Responsibilities
.................................................................................................. 164
B. Evaluation of Common but Differentiated Responsibilities
.................................................................................................. 171
III. Application of Common but Differentiated Responsibilities to
the International Shipping Sector .............................................. 180
A. The IMOs Work on Climate Change ................................. 181
B. The IMO and Market-Based Measures.............................. 185
C. The Way Forward on Market-Based Measures ................. 189
IV. Conclusion .............................................................................. 194

I. Introduction
The reduction of levels of greenhouse gases in order to
stabilize the global climate is one of the greatest environmental
challenges faced by the international community.1 Increased
concentrations of greenhouse gases in the atmosphere, and in
particular increased carbon dioxide emissions, have led to rising
global temperatures effecting global weather and climate

*
Dr Stathis N. Palassis, Senior Lecturer, Faculty of Law,
University of Technology Sydney.
1.
See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE
CHANGE
2014
SYNTHESIS
REPORT
69
(2014),
available
at
http://www.ipcc.ch/report/ar5/syr/ (stating that greenhouse gases are primarily
the carbon dioxide emissions, related to human activities, released into the
atmosphere, that accelerate the greenhouse effect) (on file with the WASHINGTON
AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

patterns.2 The challenge of reducing global greenhouse gas

concentrations and stabilizing global climate ultimately captures
all aspects of the energy, industry and transport sectors including
the reduction of carbon dioxide emissions from international
shipping.3 The international shipping sector plays an integral
part in international trade; it underpins the global economy and
is the most cost-effective and environmentally efficient mode of
transport.4 As international trade increases there will be a
parallel growth in commercial shipping and ship-source pollution
will also rise dramatically.5 It is thus necessary that
international shipping adopt measures to minimize its
greenhouse gas emissions.6
Since 1997, the International Maritime Organization
(IMO)7 has been developing rules concerning the reduction of
the international shipping sectors greenhouse gas emissions
within its wider role of reducing all forms of ship-sourced

2.
See id. (providing a detailed report on current climate change
research involving causes, and specifically addressing ocean temperatures).
3.
See Air Pollution, Energy Efficiency and Greenhouse Gas
Emissions, INTL MARITIME ORG., http://www.imo.org/OurWork/Environment/
PollutionPrevention/AirPollution/Pages/Default.aspx (last visited Dec. 14, 2014)
(estimating that in 2007 the international shipping sector contributed
approximately 2.7% of the total global carbon dioxide emissions) (on file with
the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
4.
See MARINE ENVT. PROT. COMM. INTL MARITIME ORG.,
REDUCTION OF GHG EMISSIONS FROM SHIPS 6 (2010) [hereinafter REDUCTION OF
GHG
EMISSIONS],
available
at
http://www.imo.org/OurWork/Environment/PollutionPrevention/AirPollution/Do
cuments/INF-2.pdf (stating that while shipping is the most efficient and
environmentally sound method for transporting goods, it still creates
substantial greenhouse gas emissions) (on file with the WASHINGTON AND LEE
JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
5.
See id. at 6 (predicting growth in shipping capacity due to an
expanding global economy).
6.
See id. at 1 (describing the need for emissions regulation in a
growing shipping industry).
7.
See Brief History of IMO, INTL MARITIME ORG.,
http://www.imo.org/About/HistoryOfIMO/Pages/Default.aspx (last visited Dec.
14, 2014) (stating that the IMO is an autonomous specialised agency of the
United Nations that became active in 1958 with the mission to promote safe,
secure, environmentally sound, efficient and sustainable shipping through
cooperation) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY,
CLIMATE, AND THE ENVIRONMENT).

CLIMATE CHANGE CHALLENGE

163

pollution.8 Even though the IMO has successfully regulated other

ship-sourced air pollutants,9 economic measures for the reduction
of greenhouse gas emissions and a move towards low-carbon
shipping have proven more difficult.10 In establishing economicbased instruments a significant rift has emerged within the IMO
between developed and developing State members.11 At the heart
of the debate on carbon pricing are complex legal issues
surrounding the role and responsibility of developing States to
reduce their greenhouse gas emissions.12 Developing States
strongly rely on the international law principle of common but
differentiated responsibilities and respective capabilities
(theCBDRRC
principle),13
thereby
questioning
the
appropriateness of uniform international shipping standards,
which they view as economically disadvantageous.14

8.
See REDUCTION OF GHG EMISSIONS, supra note 4, at 5
(describing the nine criteria outlined by the secretariat of the IMO for the
feasibility study directed at developing market based measures to address GHG
emissions from maritime transport).
9.
See International Convention for the Prevention of Pollution by
Oil from Ships, Annex VI, Nov. 2, 1973, 1340 U.N.T.S. 184 (amended by Protocol
Relating to the Convention for the Prevention of Pollution by Oil from Ships,
Feb. 17, 1978, 1340 U.N.T.S. 61) [hereinafter MARPOL Convention] (describing
that the IMO has adopted laws regulating ships oxides of nitrogen emissions,
levels of oxides of sulfur content in fuel , the deliberate emissions of ozone
depleting substances, and incineration).
10.
See INTERNATIONAL LAW ASSOCIATION, SOFIA CONFERENCE
(2012), Legal Principles Relating to Climate Change 6, (2012), available at
http://www.ila-hq.org/download.cfm/docid/4FBED782-B7F9-41959877E671452CBC45 [hereinafter Sofia Conference] (describing the difficulties of
instituting GHG emissions reform through the legal system following the Kyoto
agreement) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY,
CLIMATE, AND THE ENVIRONMENT).
11.
See REDUCTION OF GHG EMISSIONS, supra note 4, at 1718
(identifying differences in the economic impact of environmental policies on
developing and developed countries).
12.
See id. at 18 (noting that developing countries bear a greater
economic impact when faced with environmental regulation, particularly in the
shipping context).
13.
See Sofia Conference, supra note 10, at 3 (describing the
CBDRRC principle in the context of environmental reform).
14.
See Christopher D. Stone, Common but Differentiated
Responsibilities in International Law, 98 AM. J. INTL L. 276, 301 (2004)
(identifying why less developed countries rely on common but differentiated
principles).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

Developed States on the other hand maintain the position

of uniform international shipping standards for any economic
instruments proposed to be adopted.15 The debate is
demonstrating that there are significant compatibility issues
between the work of the IMO and international climate change
law that need to be reconciled.16 It is against this background
that the present article aims to evaluate the CBDRRC principles
application to the IMOs economic instruments for the reduction
greenhouse gas emissions.17
The article will first, provide a legal analysis of the
CBDRRC principle;18 and secondly, evaluate the application of
the CBDRRC principle to the international shipping sector.19 The
article will demonstrate that the IMO is not currently able to
synthesise into its work rules international climate change law.
The IMO ought to first focus on the common responsibility of the
international shipping sector to reduce its greenhouse gas
emissions. States parties can then tackle the separate and more
difficult stage of differentiated responsibilities. As this article will
argue, this type of focus will require a negotiation of the legal
elements of the CBDRRC principle in the forming of a differential
layer of responsibilities.

II. Common but Differentiated Responsibilities

A. Identification of Common but Differentiated
Responsibilities
The CBDRRC principle has emerged from within the
contemporary international environmental legal framework and
is contained in many multilateral environmental instruments
(MEAs).20 It is beyond the scope of the article to outline all
15.
See id. at 301 (describing that developed states see CBDRRC
principles as giving less developed states loopholes that make treaties
ineffective).
16.
See id. at 277 (overviewing the different standards for
CBDRRC found in treaties, and the difficulties they pose for signatories).
17.
See infra Part III.
18.
See infra Part II.A.
19.
See infra Part II.B.
20.
See infra notes 32, 34, 36 (describing the recognition of the
CBDRRC principle in international agreements).

CLIMATE CHANGE CHALLENGE

165

instances of the CBDRRC principles incorporation into MEAs,21

and instead will focus on its use within the international law of
sustainable development and climate change.22
In 1972 the Stockholm Declaration of the United Nations
Conference
on
the
Human
Environment
(Stockholm
Declaration)23 initially introduced the notion of differentiated
standards and responsibilities for developing States into
international environmental lawmaking.24 It provides that:
Without prejudice to such criteria as may be agreed
upon by the international community, or to
standards which will have to be determined
nationally, it will be essential in all cases to
consider the systems of values prevailing in each
country, and the extent of the applicability of
standards which are valid for the most advanced
countries but which may be inappropriate and of
unwarranted social cost for the developing
countries.25
It was not until twenty years later however that States
met in Rio de Janeiro, from June 3 to June 14th, 1992, for the
convening of the historic United Nations Conference on

21.
See infra notes 23, 30, 35, 41 (listing international regimes
that provide for the CBDRRC principle include those concerning biological
diversity, desertification, the ozone layer, the law of the sea, and marine
dumping).
22.
See infra notes 23, 30, 35, 41 (listing international regimes
that provide for the CBDRRC principle include those concerning biological
diversity, desertification, the ozone layer, the law of the sea, and marine
dumping).
23.
See United Nations Conference on the Human Environment,
Stockholm, Swed., June 516, 1972, Declaration of the United Nations
Conference on the Human Environment, U.N. Doc. A/CONF./48/14/REV.1 (June
16, 1972) [hereinafter Stockholm Declaration] (outlining 26 principles for
environmental protection that were agreed upon by states meeting in Stockholm
at the landmark U.N. Conference on the Human Environment UNCHE) (on
file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE
ENVIRONMENT).
24.
See id. (declaring that developing states should not be
economically hindered by environmental action).
25.
Id. princs. 23.

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

Environment and Development (UNCED).26 The UNCED was a

truly landmark event for international environmental law and
policy because of the extensive adoption of new green principles,
including the principle of precaution, CBDRRC and polluter
pays.27 According to Duncan French the CBDRRC principle was
one of the most conspicuous aspects of the UNCED that was
evident in all the Rio instruments.28 The principle permeated
through all the Rio initiatives thus providing an inclusionary and
equitable approach for developing and developed States alike.29
The CBDRRC principle was incorporated into the Rio Declaration
on Environment and Development (Rio Declaration),30 Agenda
21,31 the Statement of Forestry Principles,32 as well as in the
United Nations Framework Convention on Climate Change

26.
See United Nations Conference on Environment and
Development, Rio de Janeiro, Braz. June 314, 1992, Rio Declaration on
Environment and Development, 1 U.N. Doc. A/CONF.151/26/Rev.1 (Aug. 12,
1992) [hereinafter Rio Declaration] (stating in the preamble, the dates on which
the United Nations Conference on Environment and Development met in Rio de
Janeiro) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE,
AND THE ENVIRONMENT).
27.
See id. princs. 7, 15, 16 (listing provisions of the Rio
Declaration on Environment and Development).
28.
Duncan French, Developing States and International
Environmental Law: The Importance of Differentiated Responsibilities, 49 INTL
& COMP. L. Q. 35, 3536 (2000) (describing that all of the documents produced at
UNCED included CBDRRC principles).
29.
See id. at 3536 (listing the documents and the CBDRRC
principles included in them).
30.
See Rio Declaration, supra note 28, at 1 (declaring as a goal
the establishment of a new and equitable global partnership through the
creation of new levels of cooperation among States, key sectors of society and
people.).
31.
See United Nations Conference on Environment and
Development, Rio de Janeiro, Braz., June 314, 1992, Agenda 21, U.N. Doc.
A/Conf.151/26 (June 14, 1992) (addressing environmental problems such as
desertification and forestry loss) (on file with THE WASHINGTON AND LEE
JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
32.
See United Nations Conference on Environment and
Development, Rio de Janeiro, Braz., June 314, 1992, Non-Legally Binding
Authoritative Statement of Principles for a Global Consensus on the
Management, Conservation and Sustainable Development of All Types of Forests,
b, U.N. Doc. A/CONF.151/26 (Vol III) (June 14, 1992) (identifying
environmental issues in forestry) (on file with THE WASHINGTON AND LEE
JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).

CLIMATE CHANGE CHALLENGE

167

(UNFCCC),33 the Convention on Biological Diversity (CBD),34

and the United Nations Convention to Combat Desertification in
Those Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa (UNCCD).35
The provisions of the Rio Declaration significantly
expanded upon the CBDRRC principle.36 Principle 6 sets the
scene for developing States by providing that:
The special situation and needs of developing
countries, particularly the least developed and
those most environmentally vulnerable, shall be
given special priority. International actions in the
field of environment and development should also
address the interests and needs of all countries.37
Principle 11 provides that uniform standards may be
inappropriate for developing States:

33.
See United Nations Framework Convention on Climate
Change, May 9, 1992, 1771 U.N.T.S. 107 [hereinafter UNFCCC] (describing this
was not an easy treaty to negotiate due primarily to three factors: firstly,
scientific uncertainty over what can be viewed as unsettled climate change
science; second, the significant economic costs of adopting greenhouse gas
reduction measures; and third, the CBDRRC over reduction measures between
developed and developing States) (on file with THE WASHINGTON AND LEE
JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
34.
See Convention on Biological Diversity, June 5, 1992, 1760
U.N.T.S. 79 [hereinafter CBD] (noting that, special provision is required to
meet the needs of developing countries, including the provision of new and
additional financial resources and appropriate access to relevant technologies,
[n]oting in this regard the special conditions of the least developed countries and
small island States) (on file with THE WASHINGTON AND LEE JOURNAL OF
ENERGY, CLIMATE, AND THE ENVIRONMENT).
35.
See The United Nations Convention to Combat Desertification
in Countries Experiencing Serious Drought and/or Desertification, Particularly
in Africa, art. 4(2)(b), June 17, 1994, 1954 U.N.T.S. 3 [hereinafter UNCCD]
(stating that the parties shall give due attention . . . to the situation of affected
developing country parties with regard to international trade, marketing
arrangements and debt with a view to establishing an enabling international
economic environment conducive to the promotion of sustainable
development.).
36.
See Rio Declaration, supra note 28, Princ. 6 (giving special
priority to needs of developing countries).
37.
Id. princ. 6.

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

States shall enact effective environmental
legislation. Environmental standards, management
objectives and priorities should reflect the
environmental and development context to which
they apply. Standards applied by some countries
may be inappropriate and of unwarranted economic
and social cost to other countries, in particular
developing countries.38

Principle 7 then provides for differentiated responsibilities

for developing States:
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 to sustainable
development in view of the pressures their societies
place on the global environment and of the
technologies
and
financial
resources
they
39
command.
The CBDRRC principle is also contained in the
international climate change regime that is primarily comprised
of the UNFCCC and the Kyoto Protocol to the UNFCCC (Kyoto
Protocol).40 The UNFCCC is an aspirational soft law
instrument.41 Its preamble emphasizes that climate change
requires a broad-based and effective international response based
on the CBDRRC principle:
38.
Id. princ. 11.
39.
Id. princ. 7.
40.
See Kyoto Protocol to the United Nations Framework
Convention on Climate Change, FCCC/CP/1997/C.7/Add1 (Dec. 11, 1997)
[hereinafter Kyoto Protocol] (setting internationally binding emissions reduction
targets for signatory nations) (on file with THE WASHINGTON AND LEE JOURNAL
OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
41.
See id. art. 2 (stating that the objective of the treaty is to
achieve greenhouse gas stabilization).

CLIMATE CHANGE CHALLENGE

169

Acknowledging that the global nature of climate

change calls for the widest possible cooperation by
all countries and their participation in an
appropriate and effective international response, in
accordance with their common but differentiated
responsibilities and respective capabilities and
their social and economic conditions.42
While the treaty may be seen as limited in terms of its
substantive legal obligations, it is fundamental in terms of its
creating an institutional framework and thus primarily contains
strategic and procedural commitments.43 In addition, the treaty
provides that climate protection needs to occur on the basis of
generational equity in accordance with the CBDRRC principle
and with developed States leading climate protection measures. 44
Article 4 announces a series of commitments that
commence with a further recognition of the CBDRRC principle.45
At the same time, the UNFCCC also creates obligations
specifically for industrialized States that are contained in Annex
I46 of the treaty.47 Annex I States are required to adopt national
policies and take measures on the mitigation of climate change,
42.
UNFCCC, supra note 33, pmbl.
43.
See id. art. 4(1) (coordinating national and international as
well as governmental and non-governmental efforts to address climate change).
44.
See id. art. 3(1) (The Parties should protect the climate
system . . . on the basis of equity and in accordance with their common but
differentiated responsibilities and respective capabilities. Accordingly the
developed country Parties should take lead in combating climate change and the
adverse effects thereof.).
45.
See id. art. 4(1) (All parties, taking into account their common
but differentiated responsibilities and their specific national and regional
development priorities, objectives and circumstances, shall . . . .).
46.
See United Nations Framework Convention on Climate
Change,
Parties
&
Observers,
http://unfccc.int/parties_and_observers/items/2704.php (last visited Dec. 14,
2014) (defining Annex I States as members of the Organization for Economic
Cooperation and Development (OECD) while including economies in transition
(EIT) while Annex II States are OECD member States excluding States that
are EIT) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE,
AND THE ENVIRONMENT).
47.
See UNFCCC, supra note 33, art. 4(2) (delineating Annex I
party commitments).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

by limiting national anthropogenic greenhouse gas emissions and

by protecting and enhancing national greenhouse gas sinks and
reservoirs.48 There is therefore a clear duty solely on Annex I
States to mitigate climate change.49
The Kyoto Protocol further reiterates the CBDRRC
principles.50 The Protocol provides specific obligations for the
transport sector directing Annex I States to operate through the
IMO for the reduction of ship-sourced greenhouse gas
emissions.51 Article 10 then expressly reaffirms that these rules
need to reflect the CBDRRC principle:
All Parties, taking into account their common but
differentiated responsibilities and their specific
national and regional development priorities,
objectives and circumstances, without introducing
any new commitments for Parties not included in
Annex I, but reaffirming existing commitments
under Article 4 paragraph 1, of the Convention,
and continuing to advance the implementation of
these commitments in order to achieve sustainable
development, taking into account Article 4,
paragraphs 3, 5 and 7 of the Convention,
shall . . . .52
The CBDRRC principle is additionally contained in other
international regimes, including the following that have all
48.
See id. art. 4(2)(a) (noting further that equitable
implementation includes taking into account the differences in these Parties
starting points and approaches, economic structures and resource bases, the
need to maintain strong and sustainable economic growth, [and] available
technologies and other individual circumstances.).
49.
See id. art. 4(2)(a) (These policies and measures will
demonstrate that developed countries are taking the lead in modifying longerterm trends in anthropogenic emissions consistent with the objective of the
Convention . . . .).
50.
See Kyoto Protocol, supra note 40, art. 10 (recognizing
common but differentiated responsibilities).
51.
See id. art. 2(2) (The Parties included in Annex I shall pursue
limitation or reduction of emissions of greenhouse gases not controlled by the
Montreal Protocol from aviation and marine bunker fuels, working through the
International Civil Aviation Authority and the IMO, respectively.).
52.
Id. art. 10.

CLIMATE CHANGE CHALLENGE

171

adopted varying differential approaches to environmental

responsibilities: the protection of the ozone layer,53 the law of the
sea,54 and marine dumping.55

B. Evaluation of Common but Differentiated Responsibilities

The CBDRRC principle is one of the cornerstone principles
of sustainable development demonstrating that measures must
differentiate between developed and developing States to reflect
their economic circumstances and history.56 Despite both the
Stockholm and Rio Declarations being soft law instruments and
not intended as legally binding, they are important in directing

53.
See Vienna Convention for the Protection of the Ozone Layer,
pmbl., opened for signature Mar. 22, 1985, 1513 U.N.T.S. 324, 325 (Taking into
account the circumstances and particular requirements of developing
countries.); see also Montreal Protocol on Substances that Deplete the Ozone
Layer, pmbl., opened for signature Sept. 16, 1987, 1522 U.N.T.S. 28, 33
(Acknowledging that special provision is required to meet the needs of
developing countries for these substances.); Nina E. Bafundo, Compliance with
the Ozone Treaty: Weak States and the Principle of Common but Differentiated
Responsibility, 21 AM. U. INTL L. REV. 46195 (2005-2006) ([CBDRRC] seeks to
remedy global environmental problems with participation from all corners of the
world. Common suggests that global concerns, like ozone depletion, affect every
country.).
54.
See United Nations Convention on the Law of the Sea, Dec 10,
1982, 1833 U.N.T.S. 397 [hereinafter LOSC] (containing numerous provisions
allowing special treatment for developing States).
55.
See 1996 Protocol to the Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other Matter, opened for signature
Apr. 1, 1997, 36 ILM 1, 1 [hereinafter London Protocol] (recognizing the
CBDRRC principle).
56.
See Susan Biniaz, Remarks, Common but Differentiated
Responsibility, 96 AM. SOC. INTL L. PROC. 35963 (2002) (commenting on the
types of differentiation and role of CBDRRC); see also Edith Brown Weiss,
Remarks, Common but Differentiated Responsibilities in Perspective, 96 AM.
SOC. INTL L. PROC. 36668 (2002) (surveying the commonness of the
responsibility, the contextual differences in implementation, and the reflections
of historical practices and conditions in today's differentiated obligations.);
Charles E. Di Leva, Remarks, Common but Differentiated Responsibility, 96 AM.
SOC. INTL L. PROC. 36366 (2002) (considering multiple perspectives of CBDRRC
and raising questions about its implementation); Christopher Joyner, Remarks,
Common but Differentiated Responsibility, 96 AM. SOC. INTL L. PROC. 358-59
(2002) (discussing the notion of differentiated responsibility and its
implications for international law.).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

the future development of international environmental law.57 The

Rio Declaration in particular is a significant international
instrument in its promotion of a new global partnership requiring
new dimensions of cooperation amongst States and peoples.58 In
particular, the Rio Declaration encourages a new basis for
relationship between wealthy industrialized States and
developing States in which the benefits and risks are equitably
shared by all.59
The CBDRRC principle, as found in numerous MEAs,60 is
based on a common threshold of responsibility upon which
differentiated legal obligations are layered.61 Christopher Stone
notes that [t]he environment is emerging as the most fertile field
for nonuniform obligations.62 Philippe Sands and Jacqueline Peel
comment:

57.
See Rebecca M. Bratspies, Sustainability: Can Law Meet The
Challenge?, 34 SUFFOLK TRANSNAT'L L. REV. 283, 308 (2011) (The Stockholm
Declaration, [and] the Rio Declaration . . . are all soft-law documents that have
significantly changed how law and legal institutions approach questions of
sustainability.); Simon SC Tay, Southeast Asian Fires: The Challenge for
International Environmental Law and Sustainable Development, 11 GEO. INT'L
ENVTL. L. REV. 241, 263 (1999) ([S]ofts law principles suggest the likely future
direction of legal development and informally establish acceptable norms of
behavior for nations.).
58.
See Marc Pallemaerts, The Future Of Environmental
Regulation: International Environmental Law In The Age Of Sustainable
Development: A Critical Assessment Of The Unced Process, 15 J.L. & COM. 623,
651 (1996) (The Rio Conference satisfied an important claim of developing
countries by explicitly recognizing in Principle 7 of the Declaration, that, in
view of the different contributions to global environmental degradation, States
have common but differentiated responsibilities.); Rio Declaration, supra note
30, princ. 7 (States shall cooperate in a spirit of global partnership to conserve,
protect and restore the health and integrity of the Earth's ecosystem.).
59.
See Rio Declaration, supra note 30, princ. 7 (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.).
60.
See supra notes 23, 30, 35, 41 and accompanying text.
61.
See Stone, supra note 4, at 27677 (2004) (Common suggests
that certain risks affect and are affected by every nation . . . not all countries
should contribute equally. [CBDRRC] charges some nations, ordinarily the Rich,
with carrying a greater share of the burden than others, ordinarily the Poor.).
62.
Id. at 279.

CLIMATE CHANGE CHALLENGE

173

In practical terms, the principle of common but

differentiated responsibility has at least two
consequences. First, it entitles, or may require, all
concerned states to participate in international
response
measures
aimed
at
addressing
environmental problems. Secondly, it leads to
environmental standards which impose differing
obligations on states. 63
Differentiated signifies a special treatment to common
environmental problems through introducing notions of equity
into international environmental lawmaking.64 This type of
equity can be reflected in various ways: exemptions from
obligations,65 lessened obligations,66 and longer periods of time to
meet set obligations.67 Introducing such differentiation into
international environmental law acknowledges the particular
needs of developing States in creating international rules.68
Differentiation within an environmental context is certainly
effective in its attempt to allow these States the right to
development, a right that has been more extensively enjoyed by

63.
PHILIPPE SANDS & JACQUELINE PEEL, PRINCIPLES OF
INTERNATIONAL ENVIRONMENTAL LAW 235 (3rd ed. 2012).
64.
See id. at 233 (The principle of common but differentiated
responsibility has developed from the application of equity in general
international law, and the recognition that the special needs of developing
countries must be taken into account in the development, application and
interpretation of international environmental law.).
65.
See id. at 235 (commenting on the UNFCCCs obligations
extending only to developed nations).
66.
See id. (identifying less stringent commitments as sometimes
appropriate).
67.
See id. (Different techniques available to apply [different legal
obligations] include grace periods.).
68.
See id. (finding express[] recogni[tion] of special needs in
differentiated responsibility).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

developed States.69 Application of the CBDRRC principle thus

also contributes to the attaining of intra-generational equity.70
According to Lavanya Rajamani, differential treatment is
both the most effective and the most controversial of the
techniques available to integrate States from divergent spaces
into international environmental regimes.71 And in order to
attain common environmental objectives:
Differential treatment in favour of some may well
be the pragmatic outcome of a negotiation process
that seeks to achieve common environmental
objectives in the face of divergent short-term
interests
and
ecological
and
economic
72
interdependence.
Yet this differentiation between developing and developed
States may also be over-simplistic in its central meaning. For
example, not all States fit neatly into the categories of
developing and developed and in some cases the distinction
between developing and developed States may have become
blurred through application of problematic developmental
classification criteria.73

69.
See Shawkat Alam & Md. Saiful Karim, Linkages of
Development and Environment: In Search of an Integrated Approach through
Sustainable Development, 23 GEO. INT'L ENVTL. L. REV. 345, 362 (2011) (Implicit
in the [CBDRRC] Principle is the recognition that the goal of sustainable
development cannot be realized through means that deny people . . . their
individual and collective right to development.).
70.
See Rio Declaration, supra note 30, para. 3 (providing for
generational equity such that [t]he right to development must be fulfilled so as
to equitably meet developmental and environmental needs of present and future
generations.).
71.
See LAVANYA RAJAMANI, DIFFERENTIAL TREATMENT IN
INTERNATIONAL ENVIRONMENTAL LAW, 1 (2006).
72.
Id. at 6.
73.
See Composition of Macro Geographical (Continental) Regions,
Geographical Sub-Regions, and Selected Economic and Other Groupings, U.N.
STATISTICS
DIV.,
(Oct.
31,
2013),
http://unstats.un.org/unsd/methods/m49/m49regin.htm (noting that [t]here is
no established convention for the designation of developed and developing
countries or areas in the United Nations system.) (on file with the WASHINGTON
AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).

CLIMATE CHANGE CHALLENGE

175

The controversial nature of the CBDRRC principle is

particularly prominent when examining its application within
international climate change law where States have already been
classified as developed or developing. 74 Climate change law
commences by recognizing the common responsibility that all
States have concerning the protection of global climate in the
same way that all States have a common responsibility and
shared obligations over the protection of the global commons.75 It
then builds on this common layer by introducing differentiated
levels of environmental responsibility for developing States
thereby recognising their special needs while at the same time
recognizing the fact that developed States have contributed more
to the demise of global climate.76 It takes into account each
States contribution to climate change as well as their respective
capacity to remedy the contribution77 and recognises the fact that
Annex I States created 80 per cent of the current problems of
climatic change faced.78 It further recognises that developing
74.
See Paul G. Harris, Common but Differentiated Responsibility:
The Kyoto Protocol and United States Policy, 7 N.Y.U. ENVTL. L.J. 27, 3334
(1999) (noting that during negotiation of the Kyoto Protocol developing countries
refused to agree to limitations on GHG emissions unless developed countries
adopted similar emission limitations); Sabrina Safrin, Un-Exceptionalism of US
Exceptionalism, 41 VAND. J. TRANSNATL L. 1307, 1342 (highlighting several
arguments advanced by developing countries advocating for differentiated
responsibilities under international environmental law as between developing
and developed countries); see also Christopher Joyner, Burning Bridges,
Fuelling Global Discontent: The United States and Rejection of the Kyoto
Protocol, 33 VICTORIA U. WELLINGTON L. REV. 27, 49 (2002) (criticizing the Bush
administrations failure to submit the Kyoto Protocol to the United States
Senate for ratification).
75.
See Rio Declaration, supra note 30, princ. 2. (describing State
responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or of areas beyond the limits of
national jurisdiction.).
76.
See id. princ. 7 (highlighting technology, financial resources,
and varying pressures placed on the environment as reasons for differing
responsibilities).
77.
See id. (outlining countries common but differentiated
responsibilities).
78.
See COUNCIL ON FOREIGN RELATIONS, THE GLOBAL CLIMATE
CHANGE REGIME (June 19, 2013), available at http://www.cfr.org/climatechange/global-climate-change-regime/p21831
(acknowledging
the
Major
Economics Forum contains countries responsible for 80% of global emissions)
(on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE
ENVIRONMENT).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

States need flexibility in obligation to combat climate change

thereby ensuring that their economies have the opportunity to
grow without obligations that would place constraints imposed by
stringent emission reduction targets.79 Duncan French makes the
important point that it should not be presumed that developing
States do not have the potential to cause immense environmental
damage80 and that differentiation cannot simply impose
additional obligations on developed States ad infinitum.81
The Seabed Disputes Chamber of the International
Tribunal has recently considered the CBDRRC principle for the
Law of the Sea (ITLOS) in the Advisory Opinion on
Responsibilities and Obligations in the Area requested by the
International Seabed Authority (Seabed Disputes Chamber
Advisory Opinion).82 The Chamber had to consider whether
developing States should have less onerous environmental
protection obligations than those for developed States.83 On the
question of preferential treatment the Seabed Disputes Chamber
Advisory Opinion handed down on 1 February 2011 concluded
the general provisions concerning the responsibilities and
liability of the sponsoring State apply equally to all sponsoring
States, whether developing or developed.84 According to the
Seabed Disputes Chamber:
Equality of treatment between developing and
developed sponsoring States is consistent with the
need to prevent commercial enterprises based in
79.
See id. (highlighting countries like China and the United
States who were looking for a more flexible option).
80.
See French, supra note 28, at 50 (highlighting the potential of
developing countries to cause environmental damage).
81.
Id.
82.
See Request for an Advisory Opinion from Nii Allotey Adunton,
Secretary-General of the International Seabed Authority, to Judge Tullio
Treves, President of the Seabed Disputes Chamber (May 11, 2010) (on file with
the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
83.
See Responsibilities and Obligations of State Sponsoring
Persons and Entities with Respect to Activities in the Area, Case No. 17,
Advisory
Opinion
of
Feb.
1,
2011,
6,

1,
available
at
http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.
pdf (presenting the issues to be reviewed by the Seabed Disputes Chamber) (on
file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE
ENVIRONMENT).
84.
Id. 158.

CLIMATE CHANGE CHALLENGE

177

developed States from setting up companies in

developing States, acquiring their nationality and
obtaining their sponsorship in the hope of being
subjected to less burdensome regulations and
controls. The spread of sponsoring States of
convenience would jeopardize uniform application
of the highest standards of protection of the marine
environment, the safe development of activities in
the Area and protection of the common heritage of
mankind.85
The Seabed Disputes Chamber Advisory Opinion is
however disappointing for its failure to further elaborate on the
CBDRRC principle. It was a missed opportunity that could have
provided conceptual discourse and a further elaboration on the
legal status and substantive composition of the CBDRRC
principle. The Seabed Disputes Chamber Advisory Opinion left
the principles meaning, content, legal status and application still
requiring further analysis.
The CBDRRC principle is under current consideration by
the International Law Association (ILA).86 In The Legal
Principles Relating to Climate Change: First Report (2010) (ILA
First Report),87 member Alan Boyle expressed the view that
after Copenhagen the principle of CBDRRC is arguably not
viable.88 At the same meeting Eric Canal-Forgues expressed the
view that that emphasis should be placed on the common
85.
Id. 159.
86.
Thus far the International Law Association Committee on the
Legal Principles relating to Climate Change has completed its fits first two
meetings: ILA, The Hague Conference (2010); and ILA, Sofia Conference (2012).
The Committee expects to have completed its work on the Legal Principles
relating to Climate Change and to adopt draft articles and commentaries in its
Third (and final) Report that will be submitted to the ILA Conference at
Washington in 2014.
87.
See ILA, The Hague Conference (2010), Legal Principles
Related to Climate Change First Report, Aug. 1520, 2010, at 10, [hereinafter
ILA
First
Report],
available
at
http://www.ilahq.org/en/committees/index.cfm/cid/1029 (continuing previous international
efforts) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE,
AND THE ENVIRONMENT).
88.
See id. at 10 (highlighting differing views of Committee
members).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

responsibilities which is that part that is core and realistic,

whereas the but differentiated responsibilities has more limited
scope and is more controversial.89 The ILA First Report found
that the core content of the CBDRRC principle and the nature of
the obligation entailed to be deeply contested.90 The negotiations
and literature generate at least two incompatible views on the
principles content.91 One view is that the CBDRRC principle is
based on the differences that exist with regard to the level of
economic development.92 Alternatively, the CBDRRC principle is
based on differing contributions to global environmental
degradation and not in different levels of development.93 As to its
application some view it as obligatory, while others contend a
discretionary nature.94 Given these divergences the ILA First
Report concludes that the clear weight of opinion is that the
principle of CBDRRC has not acquired customary international
law status.95
The Legal Principles Relating to Climate Change: Second
Report (2012) (Sofia Conference),96 found that even though the
CBDRRC principle has not yet attained customary international
law status it is a principle of considerable legal weight.97 The
Sofia Conference Report then provides that while some elements
of the CBDRRC principle may be agreed on others are subject to

89.
See id. (outlining Eric Canal-Forgues divergent interpretation
of the CBDRRC).
90.
See id. at 11 (noting the deeply contested nature of the
CBDRRC principles).
91.
See id. (describing two differing views on the content contained
in CBDRRC principles).
92.
Id. (quoting Bettina Kellersmann, Die gemeinsame, aber
Differenzierte
Verantwortlichkeit
von
Industriestaaten
und
Entwicklungslndern fr den Schutz der gbvlobalen Umwelt 335 (2000)
(English Summary)).
93.
Id.
94.
See id. (noting a disagreement concerning the nature of the
obligations inherent in CBDRRC principles).
95.
See id. (determining that CBDRRC principles have not gained
acceptance as customary international law).
96.
See Sofia Conference, supra note 10.
97.
See id. at 9 (acknowledging the CBDRRCs considerable legal
gravitas.).

CLIMATE CHANGE CHALLENGE

179

debate.98 There is agreement that there is a common

responsibility on all States to protect the global climate system.99
There is much less agreement, however, with respect to criteria
for differentiation:
Stark disagreements remain on whether or not
historical and per capita emissions are appropriate
criteria for differentiation. Another contested
concept is the temporal element, i.e. when should
major emitters have known that their emissions
were causing harm, and is this relevant to
determining current and future responsibility and
obligations? Similarly, it remains controversial
whether and how commitments of developed
countries to provide financial and technical
assistance to developing countries relate to
CBDRRC . . . Little common ground also exists
with respect to the need and criteria for graduating
from differentiation. Differentiation exists where
relevant differences exist. It follows logically that
when
the
relevant
differences
vanish,
differentiation should cease, or at least that the
lack of differences should be taken into account in
fashioning future obligations under the regime.100
The Sofia Conference also explored complementary
principles such as prevention and good faith and sought to
examine how the climate change regime interacts and overlaps
with other MEAs, in particular those relating ozone depletion,
transboundary air pollution and biological diversity.101
Additionally the Sofia Conference sought to examine the
relationship of the climate change regime with international law
98.
See id. (noting that divergent opinions concerning CBDRRC
principles have prevented those principles from becoming customary
international law).
99.
See id. at 10 (There is agreement that the protection of the
climate system is a common responsibility of all parties to the FCCC, developed
and developing.).
100.
Id. at 11.
101.
See id. at 3234 highlighting these as important aspects for
progress in international climate change law).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

more generally as it relates to trade, human rights, the law of the

sea and the protection of world heritage.102
There is thus yet no clear answer on the evaluation of the
CBDRRC principle as a legally binding norm of international law
thereby requiring States to abide by this principle: the customary
international law status of differentiated responsibilities is
unsettled.103 This is due largely to the lack of consistency in the
principles practice and the fact that varying uses of the principle
have been adopted into MEAs. Philippe Cullet, Lavanya
Rajamani and Christopher Stone and have in no uncertain terms
expressed the view that custom has not yet crystallized around
the CBDRRC principle.104 Christopher Stone, in particular, notes
that [i]t appears that as the number and reach of multilateral
treaties has increased, so, too, has the incidence of obligationdiffering agreements. But that falls short of proof that a new
normative principle is in play.105

III. Application of Common but Differentiated

Responsibilities to the International Shipping Sector
102.
See id. at 2544 (analysing various issues related to
international law and climate change).
103.
See generally, Stathis Palassis, Beyond the Global Summits:
Reflecting on the Environmental Principles of Sustainable Development, 22
COLO. J. INTL ENVTL. L. & POLY 41 (2011) (discussing the legality of the Rio
Declarations environmental principles, which were not negotiated as legally
binding rules but some portions have crystallized as rules of customary
international law); Daniel B. Magraw, Legal Treatment of Developing Countries:
Differential, Contextual, and Absolute Norms 1 COLO. J. INTL ENVTL. L. & POLY
69, (1990) (analyzing the treatment of differentiated responsibilities to realize
effective solutions to international environmental problems).
104.
See Philippe Cullet, Differential Treatment in International
Law: Towards a New Paradigm of Inter-State Relations, 10 EURO. J. INTL L.
549, 570 (1999) (The expansion of the international community and the
globalization often environmental and economic issues have led to the search for
new legal tools to take into account existing disparities and inequalities among
states and to foster a better implementation of international agreements.);
Lavanya Rajamani, The Principle of Common but Differentiated Responsibility
and the Balance of Commitments under the Climate Regime, 9 REV. EUR.
COMMUNITY & INTL ENVTL. L 120, 124 (2000) (The legal status of the principle of
common but differentiated responsibility in international environmental law
and, in particular, within the climate regime is subject to dispute.); Stone,
supra note 14, at 299 ([T]he principle is neither universal nor self-evident.).
105.
Stone, supra note 14, at 300.

CLIMATE CHANGE CHALLENGE

181

A. The IMOs Work on Climate Change

During the last fifteen years the IMO has been developing
rules for the reduction of the international shipping sectors
greenhouse gas emissions. This reduction is addressed through
the three main pillars of the IMOs work: technical measures;
operational measures; and, market-based measures.106 Major
progress has been made by the IMO on both technical and
operational measures.107 Market-based measures have proven
more difficult however due in large to the inability of the IMO to
incorporate the CBDRRC principle into its rules.108
The first of the IMOs climate change initiatives to reduce
the international shipping sectors greenhouse gas emissions was
a study commissioned as a result of Resolution 8 CO2 Emissions
from Ships adopted at a Diplomatic Conference on Air Pollution
held in September 1997.109 Resolution 8 required the IMO to
undertake a study of ship-sourced greenhouse gas emissions as
part of a global inventory of greenhouse gas emissions.110 The
Resolution invited the IMOs Marine Environment Protection
Committee (MEPC) to consider feasible greenhouse gas
reduction strategies for the international shipping sector.111 The
result of this was the Study of Greenhouse Gas Emissions from
106.
See Stathis Palassis, Climate Change and Shipping, in
CLIMATE CHANGE AND THE OCEANS 200 (Robin Warner & Clive Schofield eds.,
2012) (discussing the IMOs work in the reduction of the international shipping
sectors greenhouse gas emissions).
107.
See
IMO,
Historical
Background
on
GHG,
http://www.imo.org/OurWork/Environment/PollutionPrevention/AirPollution/Pa
ges/Historic%20Background%20GHG.aspx (last visited Dec. 14, 2014) (providing
detailed background of the International Martine Organisations work with
greenhouse gases) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY,
CLIMATE, AND THE ENVIRONMENT).
108.
See id. (stating that the consideration of market-based
measures had to be postponed).
109.
See id. (explaining that the resolution invited the Marine
Environment Protection Committee (MEPC) to consider what CO2 reduction
strategies might be feasible in light of the relationship between CO2 and other
atmospheric and marine pollutants.).
110.
See id. (explaining that the resolution required a study of
CO2 emissions from ships for the purpose of establishing the amount and
relative percentage of CO2 emissions from ships).
111.
See id. (describing the need for reduction strategies in light of
the relationship between CO2 and other atmospheric marine pollutants).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

Ships that was presented to the 45th session of the MEPC in

2000.112
A further Resolution A.963(23) on IMO Policies and
Practices related to the Reduction of Greenhouse Gas Emissions
from Ships was adopted by the twenty-third session of the IMO
Assembly in December 2003.113 It recognised carbon dioxide as
the main greenhouse gas emitted by ships and directed that the
MEPC identify and develop technical, operational and marketbased measures to reduce the greenhouse gas emissions from
international shipping.114 In October 2006 the MEPC adopted a
work plan for the development of technical and operational
measures necessary for the reduction of the greenhouse gas
emissions of international shipping.115 The Second IMO GHG
Study 2009 updated the first greenhouse gas study.116 This
second study addressed the principal greenhouse gases117 and
other relevant substances,118 and showed that exhaust gas is the
112.
See id. (providing a brief history of greenhouse gas regulations
by the IMO).
113.
See IMO, IMO Policies and Practices Related to the Reduction
of Greenhouse Gas Emissions from Ships, Res. A.963(23) (Dec. 5, 2003)
(supporting further regulations to reduce greenhouse gas emissions) (on file
with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE
ENVIRONMENT).
114.
See id. at 2 (requesting the Marine Environment Protection
Committee (MEPC) develop a greenhouse gas emission index for ships as well
as guidelines for the application of that index).
115.
See
IMO,
Market-Based
Measure,
http://www.imo.org/OurWork/Environment/Pollution
Prevention/AirPollution/Pages/Market-Based-Measures.aspx (last visited Dec.
15, 2014) (describing the history of market-based measures as part of a
comprehensive measure for the regulation of greenhouse gases) (on file with the
WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
116.
See IMO, Prevention of Air Pollution from Ships, Second IMO
GHG
Study
2009,
available
at
http://www.imo.org/blast/blastDataHelper.asp?data_id=27795&filename=GHGS
tudyFINAL.pdf [hereinafter the Second IMO GHG Study 2009] (analysing
market based measures to reduce GHG emissions) (on file with the WASHINGTON
AND LEE JOURNAL OF ENERGY, CLIMATE AND THE ENVIRONMENT).
117.
See Kyoto Protocol to the United Nations Framework
Convention on Climate Change, Annex A Dec. 10, 1997 (setting out the six
principal greenhouse gases as: carbon dioxide (CO2), methane (CH4), nitrous
oxides (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and
sulphur hexafluoride (SF6)).
118.
See Second IMO GHG Study, supra note 116 (describing other
relevant substances to include: nitrous oxide (NOx), non-methane volatile

CLIMATE CHANGE CHALLENGE

183

major source of carbon dioxide/greenhouse gas emissions from

international shipping.119 The objectives of this study were to
assess the present and future greenhouse gas emissions from
international shipping, the potential for reduction of these
emissions through technology and policy and their impacts on
climate change.120
At the sixty-second meeting of the MEPC in July 2011 the
necessary consensus was reached to make the use of technical
and operational measures mandatory.121 The rules on technical
and operational measures are contained in a new Chapter 4 to
Annex VI of the MARPOL Convention122 that commenced
operation on January 1, 2013.123 Technical measures are now
provided for in rules concerning the Energy Efficiency Design
Index (EEDI) a tool that assigns specific energy efficiency to
new ships.124 Pursuant to Chapter 4 all new ships of 400 gross
tons and above must be certified with an International Energy
Efficiency Certificate (IEE Certificate) and have an Attained
EEDI (actual verifiable values) which is equal or less to the

organic compounds (NMVOC), carbon monoxide (CO), particulate matter

(PM) and oxides of sulphur (SOx)).
119.
See id. at 21 (concluding that carbon dioxide is the most
important GHG emitted by ships).
120.
See id. at 9 (describing the main objectives of the study).
121.
See Breakthrough in IMO: Legally Binding Agreement to
Reduce CO2 Emissions from International Shipping, INTL MARITIME ORG.
http://www.imo.org/OurWork/Environment/PollutionPrevention/AirPollution
/Pages/Breakthrought-at-MEPC-62.aspx (last visited Dec. 15, 2014) (describing
the adoption, through resolution, MEPC.203 (62) that mandates EEDI and
SEEMP) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE
AND THE ENVIRONMENT).
122.
See MARPOL Convention, supra note 9, at 9 (detailing
regulations on energy efficiency for ships).
123.
See IMO, supra note 121, para. 11 (noting that chapter four,
however, does allow States to waive compliance with the EEDI requirements for
a period of up to four years).
124.
See Lloyds Register LR MEPC 62 Agenda Preview, Annex 1
Prevention of Air Pollution, Including Control of Green House Gas (GHG)
Emission, (2011) ([The] EEDI reflects the amount of [CO2] generated per
tonne/mile . It constitutes a uniform approach to calculation of a ships energy
efficiency during the design and build of new ships and will be used to control
[CO2] levels emitted for future ships by encouraging improvements in ship
design.).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

Required EEDI a base-line calculated per ship category.125

Operational measures are provided for in rules concerning the
Energy Efficiency Operational Indicator (EEOI) as measured
through the Ship Energy Efficiency Management Plan
(SEEMP) for ongoing operational management.126 Further, all
ships are required to be provided with a SEEMP providing for
procedures necessary to improve the energy efficiency of ships
operations.127 Each ship must keep on board the ship specific
SEEMP which may form part of the ships Safety Management
System.128 The international shipping sector has now become the
first international industry sector to adopt a mandatory
greenhouse gas reduction scheme combating its carbon
dioxide/greenhouse gas emissions.129

125.
See IMO, Mandatory Energy Efficiency Measures for
International
Shipping
Adopted
at
IMO
Environment
Meeting,
http://www.imo.org/MediaCentre/PressBriefings/Pages/42-mepcghg.aspx#.VG44PmctCJB (last visited Dec. 15, 2014) (stating that the new
regulations apply to seven classes of ships: bulk carriers; gas tankers; oil,
chemical and noxious liquid substances tankers; container ships; cargo ships;
refrigerated cargo carriers; and combination carriers) (on file with the
WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
126.
See id. (explaining that the adoption and implementation of
energy efficiency standards through technical and operational measures is
critical as it establishes the standards for ship design and building, emissions
measurement, emissions management, operating procedures, and monitoring
and evaluating mechanisms).
127.
See Technical and Operational Measures, INTL MARITIME
ORG.,
http://www.imo.org/OurWork/Environment/
PollutionPrevention/AirPollution/Pages/Technical-and-OperationalMeasures.aspx (last visited Dec. 15, 2014) (listing in detail the SEEMP for all
ships) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND
THE ENVIRONMENT).
128.
See id. (outlining potential portions of ships individual safety
management system).
129.
See Fiona Harvey, Airlines Agree to Curb Their Greenhouse
Gas
Emissions
by
2020,
THE
GUARDIAN,
http://www.guardian.co.uk/environment/2013/jun/04/airlines-agree-to-curbgreenhouse-gas-emissions (last visited Dec. 15, 2014) (indicating that it is worth
noting that on Monday June 3, 2013, the International Air Transport
Association adopted a resolution calling on States to agree to measures
regulating the carbon dioxide emissions from air travel to commence operation
in 2020) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE,
AND THE ENVIRONMENT).

CLIMATE CHANGE CHALLENGE

185

B. The IMO and Market-Based Measures

Discussions by the MEPC on market-based measures and
the adoption of economic instruments have been ongoing since
2008. Despite the considerable overall progress that has been
made within the MEPC, consensus on market-based measures
and the adoption of appropriate economic instruments combating
the sectors carbon-dioxide emissions is yet to be reached.130 The
major difficulty experienced by the MEPC has been the role of the
CBDRRC principle and its accommodation within the rules of the
international shipping sector.131
At the fifty-eighth meeting of the MEPC in 2008, there
was discussion concerning an emissions trading scheme, a global
levy on fuel, and other hybrid market-based schemes for ships
engaged in international trade.132 The majority of delegations,
however, opposed the development of any market-based measures
until all the issues surrounding the application of differentiated
responsibilities had been resolved in the UNFCCC context and in
full recognition of Article 2(2) of the Kyoto Protocol.133 Other
delegations expressed the view that as market-based measures
are a highly complex matter and still at a preliminary stage in

130.
See Sophia Conference, supra note 10, at 6 (describing the
hurdles faced in implementing clear and binding obligations to reducing
greenhouse gasses).
131.
See infra note 160 (describing the problems the IMO has in
implementing).
132.
See Marine Envt Prot. Comm., Marine Environmental
Protection Committee (MEPC), 58th Session: 6-10 October 2008, INTERNATIONAL
MARITIME
ORGANIZATION,
http://www.imo.org/MediaCentre/MeetingSummaries/MEPC/Archives/Pages/def
ault.aspx (last visited Dec. 15, 2014) (Major progress was made on reducing
emissions from ships, in achieving safer and more environmentally safer
recycling of ships, and in facilitating ballast water management.) (on file with
the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE
ENVIRONMENT).
133.
See id. ([S]everal other delegations expressed the opinion that,
given the global mandate of IMO as regards the safety of ships and the
protection of the marine environment from ship emissions, the IMO regulatory
framework on the GHG issue should be applicable to all ships, irrespective of
the flags they fly.).

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their development further information and studies were

needed.134
The Committee therefore decided to defer a focused debate
on the matter to its fifty-ninth meeting.135 At the Committees
fifty-ninth meeting in 2009 there was debate as to: first, an offset
for the growing greenhouse gas emissions from ships and
incentive for industry investment in fuel and energy efficient
shipping; and second, the funds generated through market-based
measures to be utilized for related purposes such as mitigation
and adaptation activities in developing States.136
At the sixtieth meeting of the MEPC in 2010, an
agreement was reached on how to proceed in regards to marketbased measures in which the MEPC Expert Group on Feasibility
Study and Impact Assessment of Possible Market-based
Measures (Expert Group) would consider submitted documents
and report back to the Committees sixty-first meeting.137 The
Committee noted that it had to develop a methodology of
feasibility studies and impact assessments to assess the proposed
mechanisms.138

134.
See id. (Further work on the limitation and reduction of GHGs
from ships will continue at an intersessional meeting early in 2009, for
presentation to MEPC 59 in July, which will benefit from the findings of the
second and final part of the update of the 2000 IMO study.).
135.
See id. (The MEPC also held a discussion on market-based
measures, and agreed to further discuss such measures at MEPC 59.).
136.
See Marine Envt Prot. Comm., Marine Environmental
Protection Committee (MEPC), 59th Session: 13-17 July 2009, INTL MARITIME
ORG.
http://www.imo.org/MediaCentre/MeetingSummaries/MEPC/Archives/Pages/def
ault.aspx (last visited Dec. 15, 2014) (reporting debates and solutions on
agreements reached and proposals for future debates) (on file with the
WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
137.
See id. (With regard to market-based measures, the
Committee agreed to establish an Expert Group on the subject to undertake a
feasibility study and impact assessment of the various proposals submitted for a
market-based instrument for international maritime transport again,
reporting back to MEPC 61.) (on file with the WASHINGTON AND LEE JOURNAL OF
ENERGY, CLIMATE, AND THE ENVIRONMENT).
138.
See id. ([The committee] agreed a work plan for further
consideration, at future meetings, of proposed market-based instruments to
provide incentives for the shipping industry.).

CLIMATE CHANGE CHALLENGE

187

The Expert Group organized its work within a structure of

four specialist groups.139 Again, however, some developing States,
in this instance Brazil, China, Cuba, India and Saudi Arabia,
advocated for a postponement of any further work on marketbased measures until after the 16th meeting of the conference of
the parties to the UNFCCC.140 The sixtieth meeting also agreed
on a methodology that is contained in the Terms of Reference for
the Expert Group.141
The sixty-first meeting of the MEPC held extensive debate
on how to progress on the development of suitable market-based
measures for international shipping.142 Substantial progress on
such measures was not, however, expected at this meeting.143 The
Committee instead discussed the way forward in the adoption of
market-based measures as well as the comprehensive Report of
the Expert Group on feasibility and impact assessment of the
several market-based measures that included eight identified
proposals.144 The proposed market-based measures considered by
the Report utilized eight mechanisms for the reduction of
greenhouse gas emissions, comprising both in-sector and out-ofsector mechanisms.145 The Expert Group, however, found that the
proposals to varying degrees lacked sufficient detail and that the
139.
See REDUCTION OF GHG EMISSIONS, supra note 4, at 6.
(establishing four task groups: environment; shipping and maritime;
administrative and legal; and trade, development and developing States).
140.
See id. at 16 (outlining the differing opinions related to the
application of market-base measures).
141.
See id. at 20 (stating that the Terms of Reference include three
tasks, including scope of feasibility, identification of reduction potential of GHG,
and third, the study of difference in socioeconomic capabilities between
developing and developed States).
142.
See Marine Envt Prot. Comm., Marine Environmental
Protection Committee (MEPC), 61st Session: 27 September to 1 October 2010,
INTL
MARITIME
ORG.
http://www.imo.org/MediaCentre/MeetingSummaries/MEPC/Pages/MEPC-61stSession.aspx (last visited Dec. 15, 2014) (stating the lengthy debate focused
around the Expert Groups findings) (on file with the WASHINGTON AND LEE
JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
143.
See id. (discussing the scope of the Expert Groups work).
144.
See id. ([F]ollowing the submission of a comprehensive report
by an Expert Group, which had carried a feasibility study and impact
assessment of several possible market-based measures submitted by
governments and observer organizations.).
145.
See REDUCTION OF GHG EMISSIONS, supra note 4, at 910
(listing mechanisms both in and out of sector).

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6 WASH. & LEE J. ENERGY CLIMATE & ENVT 1 (2014)

different levels of maturity of the proposals complicated their

evaluation.146 It concluded that it needed more information on all
the possible measures that required further elaboration and
development before being able to make any definitive policy
assessment.147
At the sixty-second meeting of the MEPC from July 11 to
15, 2011, discussion was on the Expert Groups report and there
were no major developments regarding the adoption of marketbased measures.148 The MEPC held its sixty-third meeting from
February 27 to March 2, 2012 and debated at length issues
arising from the proposed market-based measures.149 The
Committee also discussed the nine current proposals before the
MEPC.150 The Committee, however, could not reach consensus on
a suitable analysis method and thus deferred the establishment
of terms of reference for the analysis of proposals to MEPC 64.151
Conclusion also could not be reached on the draft Resolution for
Technical Co-operation and Transfer of Technology to developing
countries following on the MEPC 62 Annex VI amendments and

146.
See id. at 19 (The evaluation was complicated by the different
levels of maturity of the proposals. Proposals with a high level of maturity
generated more discussion compared to those that were less developed.).
147.
See id. at 19 (These issues require further policy
considerations before in order to be more properly addressed.).
148.
Marine Envt Prot. Comm., Marine Environmental Protection
Committee (MEPC), 63rd Session: 27 February to 2 March 2012, INTL MARITIME
ORG. http://www.imo.org/MediaCentre/MeetingSummaries/MEPC/Pages/MEPC63rd-session.aspx (last visited Dec. 15, 2014) (The MEPC continued its
intensive consideration of proposed market-based measures (MBMs), which
would complement the technical and operational measures already adopted.)
(on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE
ENVIRONMENT).
149.
See id. (adopting additional guidelines: Methods of Calculation
of the Attained Energy Efficiency Design Index (EEDI) for new ships;
Development of a Ship Energy Efficiency Management Plan (SEEMP); Survey
and Certification of the Energy Efficiency Design Index (EEDI); and
calculation of reference lines for use with Energy Efficiency Design Index).
150.
See id. (An important series of guidelines to support the
uniform implementation of mandatory measures to increase energy efficiency
and reduce emissions of greenhouse gases (GHGs) from international shipping
was adopted . . . paving the way for the regulations to be smoothly and
uniformly implemented by Administrations and industry.).
151.
See id. (Further debate will continue at the next session
(MEPC 64, 1 to 5 October 2012).).

CLIMATE CHANGE CHALLENGE

189

this would be further discussed at MEPC 64.152 At the sixtyfourth meeting of the MEPC from October 1 to 5, 2012, the
Committee primarily considered additional documentation by
delegates to the various proposals currently before the
Committee.153 Due to other pressing matters, however, the
Committee decided to keep the documents under abeyance and
postpone further debate on market-based measures to the sixtyfifth meeting to be held from May 13 to 17, 2013.154

C. The Way Forward on Market-Based Measures

The Expert Group has now provided its comprehensive
report containing opinion on the compelling need and purpose of
market-based measures as well as the feasibility and impact
assessment of the various market-based or carbon price
measures.155 The scope of the work of the Expert Group was to
evaluate the current proposals with the aim of assessing the
extent to which they could reduce the greenhouse gas emissions
from international shipping while giving priority to the maritime
sectors of developing States, least-developed States and smallisland developing States.156
152.
See id. (Linked to the implementation of energy efficiency
measures was the draft MEPC resolution on the Promotion of technical cooperation and transfer of technology relating to the improvement of energy
efficiency of ships, where it was agreed to further discuss the draft at the next
session.).
153.
See Marine Envt Prot. Comm., Marine Environmental
Protection Committee (MEPC), 64th Session: 1 to 5 October 2012, INTERNATIONAL
MARITIME
ORGANIZATION
http://www.imo.org/MediaCentre/MeetingSummaries/MEPC/Pages/MEPC-64thsession.aspx (last visited Dec. 15, 2014) (The MEPC received updates to several
of the proposed market-based measures (MBMs) to reduce GHG emissions,
which would complement the technical and operational measures already
adopted.) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE,
AND THE ENVIRONMENT).
154.
See id. (However, in view of time constraints at the current
session, the MEPC agreed to postpone detailed debate on MBMs to MEPC 65.).
155.
See REDUCTION OF GHG EMISSIONS, supra note 4, at 1 (stating
the purpose of the research and providing background information).
156.
See id. at 5 (Consistent with the terms of reference given by
the Committee, the experts were to evaluate the various proposals with the aim
of assessing the extent to which they could assist in reducing GHG emissions
from international shipping.).

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There are several proposals on market-based measures

currently being considered by the Expert Group.157 Whatever
economic instruments are adopted, such as emissions trading
schemes or levies, the pricing of carbon will be difficult as the
IMO needs to incorporate the CBDRRC principle into economic
instruments combatting its carbon dioxide emissions.158 The
UNFCCC, the Kyoto Protocol and the Copenhagen Accord
advocate the interests of developing States and the
rationalization of the CBDRRC principle thereby placing a
greater share of greenhouse gas reduction responsibility on
developed States for current and projected climate effects.159
This means that the IMO must synthesise into its rules
the work of the UNFCCC.160 This is an extremely onerous task
for the IMO for three reasons: first, the IMO needs to integrate
differential treatment with uniform international standards;161
secondly, the international climate change regime represents a
substantial void in international environmental law making;162
and thirdly the legal content of the CBDRRC principle is yet to be
identified.163 These difficulties have resulted in a clear inability
for the IMO to effectively consider the CBDRRC principle.
On the other hand, uniformity of international shipping
standards is crucial for the effective management of international
shipping, which takes a global approach to all matters, including

157.
See id. at 6 (stating there are ten proposals describing
programs with the purpose of lowering GHG emissions from ships).
158.
See id. at 16 (noting the success of the administrative and legal
task group in explaining the necessary issues in compatibility with certain
proposals and existing treaty regimes).
159.
See id. at 16 (agreeing that CBDRRC principle exists, but
disagreeing on its application).
160.
See id. at 37 (stating difficulties in the opposite goals of the
CBDRRC principles and the IMOs policy).
161.
See id. at 37 (One view is that the UNFCCC provides the
central policy infrastructure for global climate change action and the proposed
market-based measures must take into account the principle of common but
differentiated responsibilities and respective capabilities.).
162.
See ILA First Report, supra note 87, at 3 (Although these
instruments are important first steps towards addressing climate change and
its impacts, they are widely regarded as inadequate and inadequately
implemented.).
163.
See id. at 10 (outlining different theories on how the CDBRRC
principle applies to international law).

CLIMATE CHANGE CHALLENGE

191

pollution regulation.164 Uniformity of international standards is

supported by the LOSC.165 Part 12 of the LOSC deals with
pollution and sets out the competence of States over six sources of
marine pollution including ships-sourced.166
The LOSC defers details for the technical rules that are to
be formulated.167 The treaty directs States to operate through the
competent international organization in reducing all forms of
ship-sourced marine pollution.168 Even though the IMO is not
explicitly named, it is beyond doubt that the IMO is such an
organization.169
Developing States have challenged the appropriateness of
the IMO as the competent international organization.170
Developed States, on the other hand, view the IMO as the forum
within which to promulgate rules for the reduction of greenhouse
gas emissions.171 The IMO is generally viewed as the competent
international organization within which to develop rules for
international shipping to reduce its greenhouse gas emissions:
this is supported by the LOSC, the Kyoto Protocol, the
Copenhagen Accord and Agenda 21.
Developing States have also questioned whether Annex VI
of the MARPOL Convention is the correct regulatory strategy,
164.
See An Introduction to the IMO, INTL MARITIME ORG.,
http://www.imo.org/About/Pages/Default.aspx (last visited Dec. 15, 2014)
(Shipping is a truly international industry, and it can only operate effectively if
the regulations and standards are themselves agreed, adopted and implemented
on an international basis. And IMO is the forum at which this process takes
place.) (on file with the WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE,
AND THE ENVIRONMENT).
165.
See LOSC, supra note 54, at pmbl. (declaring that the purpose
of the treaty is to settle issues relating to the law of the sea).
166.
See id. at art. 211 (listing six requirements for states to reduce
pollution from vessels).
167.
See id. at art. 211 (States, acting through the competent
international organization or general diplomatic conference, shall establish
international rules.).
168.
See id. (directing first that states act through international
organizations).
169.
See An Introduction to the IMO, supra note 164 ([The IMOs]
main role is to create a regulatory framework for the shipping industry that is
fair and effective, universally adopted and universally implemented.).
170.
See Palassis, supra note 106, at 14 (questioning current
strategy and chosen forum).
171.
See id. at 1415 (utilizing uniform standards).

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preferring instead to operate through the auspices of the

UNFCCC and its conference of the parties mechanism. Developed
States support the position of the adoption of uniform standards
within Annex VI of the MARPOL Convention.172 As the IMO is
the appropriate forum within which to create rules for the
reduction of ship-sourced greenhouse gas emissions, it follows
that Annex VI of the MARPOL Convention is the correct
regulatory instrument.
As differentiation and uniformity do not sit comfortably
together, there are significant compatibility issues between the
work of the IMO in creating market-based measures and the
work of the UNFCCC that now need to be reconciled.173 The
application of the CBDRRC principle to a regime based on
uniformity of international standards will require accommodating
the interests of both developed and developing States.174
In creating market-based measures, can developed and
developing States accommodate each others interests or is the
CBDRRC principle and uniformity of international standards
mutually exclusive?175 Further, there is no precedent in any of
the IMOs 52 multilateral instruments whereby measures have
been selectively applied to certain ships.176 Quite to the contrary,
the IMOs regulatory measures apply to all ships regardless of
their place of registration, their flag and nationality.177
Further, a strict application of the CBDRRC principle to
the international shipping sector would mean that as long as
ships are registered in developing States and flying a flag of
convenience they would be exempt resulting in considerable

172.
See supra note 171 and accompanying text.
173.
See REDUCTION OF GHG EMISSIONS, supra note 4, at 37
(describing differing views on how to incorporate the CBDRRC framework).
174.
See id. at 37 (stating that this issue is still being discussed
among the States).
175.
See id. at 36 (Issues related to compatibility of the proposed
market-based measures and the United Nations Framework Convention on
Climate Change (UNFCCC) are politically difficult and complicated by the
ongoing negotiations under the UNFCCC.).
176.
See id. at 36 (stating that the IMO framework is for no
preferential treatment).
177.
See id. at 36 (noting that the IMO convention provides for nondiscrimination in IMO instruments).

CLIMATE CHANGE CHALLENGE

193

carbon leakage.178 The importance of uniform international

standards is encapsulated in the IMOs mission statement:
The mission statement of the IMO as a United
Nations specialized agency is to promote safe,
secure, environmentally sound, efficient and
sustainable shipping through cooperation. This will
be accomplished by adopting the highest
practicable standards of maritime safety and
security, efficiency of navigation and prevention
and control of pollution from ships, as well as
through consideration of the related legal matters
and effective implementation of [the] IMOs
instruments with a view to their universal and
uniform application.179
While there is no precedent in the IMOs multilateral
instruments whereby measures are selectively applied to certain
ships, the UNFCCC Secretariat repeatedly notes that even
though the IMO has contributed to developing rules in the area,
it must synthesise its capabilities and expertise along with the
UNFCCC and be cognisant of the progress under both
processes.180 Such a synthesis of interests can only occur upon
and after the identifying of the elements of the CBDRRC
principle. Only then can the IMO members effectively negotiate a
legal framework for market-based measures for the international
shipping sectors carbon dioxide reduction measures.181 However,
the accommodation of common but differentiated responsibilities
within a regime that maintains uniform international shipping

178.
Allison Crimmins, Carbon Leakage, MIT NEWS ON CAMPUS AND
AROUND THE WORLD (March 18, 2011), http://newsoffice.mit.edu/2011/carbonleakage (defining carbon leakage as the situation that emerges when one carbon
reduction initiative may result in an increase in emissions elsewhere with an
overall effect of no real reduction in greenhouse gas emissions) (on file with the
WASHINGTON AND LEE JOURNAL OF ENERGY, CLIMATE, AND THE ENVIRONMENT).
179.
See An Introduction to the IMO, supra note 164 ([The IMOs]
main role is to create a regulatory framework for the shipping industry that is
fair and effective, universally adopted and universally implemented.).
180.
See supra notes 188-192 and accompanying text.
181.
See An Introduction to the IMO, supra note 164 (describing the
IMO as the organization to regulate the international shipping industry).

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standards can be viewed as a watering-down of the principle.182

According to Christopher Stone:
The ideal would be to have one set of institutions
focused on optimal substantive policies and another
group focused on poverty and development.
Coupling the ambitions threatens to produce
suboptimal outcomes for each.183
At the present stage, however, it remains unclear to what
extent, if any, the CBDRRC principle can be incorporated into the
IMOs market-based measures and any economic instruments
that may be adopted.184

IV. Conclusion
It is imperative that action combatting climatic change not
be delayed and that measures are taken to reduce greenhouse gas
emissions.185 This includes action to combat the carbon dioxide
emissions of the international shipping sector.186 As has been
demonstrated, however, there are complex legal issues involved
concerning the application of the CBDRRC principle whose
content and status are still uncertain as a norm of customary
international law.
Commentators suggest that the CBDRRC principle is not
yet a legally binding norm of customary international law and
thus its status, content and application remain unsettled.187
Despite this commentary, the CBDRRC is a principle of
182.
See REDUCTION OF GHG EMISSIONS, supra note 4, at 36 (The
proposal could be viewed to be against the principles and provisions of the
UNFCCC because its Article 4.3 could be viewed as mandating only developed
country parties to provide funding to mitigation action by developing
countries.).
183.
Stone, supra note 14, at 301.
184.
See Sophia Conference, supra note 10, at 13 (calling the
implementation of CBDRRCs a work in progress).
185.
See supra Part I (giving an introduction to shipping in relation
to emissions).
186.
See supra Part II (discussing the imperative nature of
reduction of greenhouse gasses).
187.
See supra Part II.B (describing the theory of the CBDRRC
principles).

CLIMATE CHANGE CHALLENGE

195

significant gravitas and thus pivotal within international

environmental law making, particularly as it relates to the global
commons.188
Regarding the compatibility of the CBDRRC principle
with any economic instruments proposed for adoption to the IMO,
it is concluded that the twin goals of differentiation and
uniformity do not sit comfortably together.189 These twin goals
are not merely two conflicting principles of international law;
they are two central tenets of two distinct multilateral regimes,
those of the UNFCCC and the IMO respectively.190
Issues of compatibility are significant and underlie the
choice of any economic instrument either by way of an emissions
trading or a carbon levy.191 The issues will not be easy to resolve
and economic instruments should not hastily be adopted. Further
work is required before an appropriate model can be adopted. The
member States of the IMO need to systematically work through
all compatibility issues and incorporate all relevant rules of
international law into any proposal on economic instruments that
is under consideration before any real progress forward can be
made.
It is concluded that the IMO focus on the common
responsibilities component and defer further debate on the
differentiated responsibilities component of the principle until
the ILA has concluded its work and published draft articles and
commentaries on the components of this difficult and
controversial international law principle. It is imperative the
IMO reconciles the two regimes through negotiation of the legal
elements of the CBDRRC principle; it is critical that the IMO gets
this right.

188.
See id.
189.
See supra notes 177180 and accompanying text (describing
the different goals of developing and developed states and how they must
compromise within a treaty regime).
190.
See supra notes 188200 (noting the difficulty in reconciling
the goals of the IMO with the UNFCC).
191.
See supra Part III.C (describing the conflicting nature of the
UNFCCC and the IMO, and how States cannot come to an agreement).