1 Conventions that adopt the expression explicitly include the United Nations Framework Convention on Climate Change, opened for signature June 4,1992, 31 ILM 849 (1992)Google Scholar [hereinafter FCCC]. Other conventions do not adopt the term, but do differentiate explicitly, including the Adjustments and Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer, June 29,1990, 30 ILM 537, 541 (1991)Google Scholar [hereinafter Amendments to Montreal Protocol]. Several of the more veiled or encoded variants are illustrated in the United Nations Framework Convention on Biological Diversity, opened for signature June 5,1992,31 ILM818 (1992) [hereinafter CBD]: for example, that each party do something “as far as possible and as appropriate,” id., Arts. 5, 7-11, 14; that the benefits of resources be shared “in a fair and equitable way,” id., Art. 15(7); and that for the purposes of financing, “ [c]onsideration . . . be given to the special situation of developing countries.” id., Art. 20(7). See generally Sands, Philippe, Principles of International Environmental Law 225–28 (2d ed. 2003)Google Scholar; French, Duncan, Developing States and International Environmental Law: The Importance of Differentiated Responsibilities, 49 Int’l & Comp. L.Q. 35 (2000)CrossRefGoogle Scholar; Daniel, Barstow Magraw, Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms, 1 Colo. J. Int’l Envtl. L. & Pol’y 69 (1990)Google Scholar; Rajamani, Lavanya, The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime, 9 Rev. Eur. Community & Int’l Envtl. L. 120 (2000)CrossRefGoogle Scholar. Other conventions use close cognates. For example, the preamble to the 1982 UN Convention on the Law of the Sea, references “the special interests and needs of developing countries.” United Nations Convention on the Law of the Sea, opened for signature Dec. 10,1982, 1833 UNTS 397 [hereinafter LOS Convention]. In trade law, where conditions of trade access rather than provisions regarding public goods are typically at issue, “special and differential treatment” (S&DT) is ordinarily used. But even in the WTO context, CDR, in those terms, has made an appearance. See infra note 41. For a critique of S&DT, see Hart, Michael & Dymond, Bill, Special and Differential Treatment and the Doha “Development” Round, 37 J. World Trade 395, 395 (2003)Google Scholar (deeming “misguided and perverse” the theory that the economies of developing countries require sheltering from full application of liberalized trade rules; and arguing that differential trade treatment is “more likely to retard than aid economic development”).

2 The term thus has a common root with such international law expressions as “common heritage” and “common concern of mankind.” Note that, at least under the FCCC, supra note 1, not every country that faces the common problem shares in a common responsibility to fix it. The Kyoto Protocol to the FCCC divides the parties into four groupings. Kyoto Protocol to the United Nations Framework Convention on Climate Change, 3d Sess., Dec. 11, 1997, 37 ILM 32 (1998), available at <http://unfccc.int/resource/docs/convkp/kpeng.html> [hereinafter Kyoto Protocol]. Annex II includes the Organisation for Economic Co-operation and Development countries. See infra text at notes 23-26. Annex I includes the Annex II countries, plus some countries in Central and Eastern Europe (CEE) and the newly independent states that resulted from the Soviet breakup. In 1995, the parties exempted non-Annex I countries from any new commitments (leaving, for example, reporting obligations untouched), but leaving further responsibilities to be divided among the richer (Annex I) parties exclusively. United Nations FCCC Conference of the Parties, 1st Sess. U.N. Doc. FCCC/CP/1995/7/Add 1, Decision 1/CP.l, at 4-6 (June 6, 1995) [hereinafter Berlin Mandate].

There is even a further qualification embedded in Annex B of the Kyoto Protocol that gives special consideration to the Annex I-listed “economies in transition.” Annex B differs from Annex I by the addition of Croatia, Liechtenstein, Monaco, and Slovenia and the removal of Belarus and Turkey. The non-Annex I parties’ “common responsibilities” are nominal, such as reporting requirements, thereby making the term somewhat misleading as applied to the FCCC. But see infra pp. 11-12 (discussing the possible obligation of the Poor to make low-cost abatement opportunities available to the Rich).

3 The phrase appears in the Report of the World Summit on Sustainable Development, ch. I, pt. 2, Annex, para. 81, UN Doc. A/CONF.199/20 (2002), available at <http://www.johannesburgsummit.org/html/documents/ summit_docs/131302_wssd_report_reissued.pdf>, revised by UN Doc. A/CONF. 199/20/Corr. 1 (2003) [hereinafter Johannesburg Declaration].

4 Not all differentiating agreements favor the Poor. One example is the Washington Treaty apportioning total permissible capital ships among the United States, the United Kingdom, (525,000 tons each), Japan (315,000 tons), France, and Italy (175,000 tons each). Multilateral Limitation of Naval Armament (Five-Power Treaty or Washington Treaty), Feb. 6, 1922, Art. 4, TS No. 671, 2 Bevans 351 (entered into force Aug. 17,1923) [hereinafter Washington Treaty]. The 1972 London Convention illustrates obligations adjusted by reference to the “scientific, technical and economic capabilities” of the parties. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, Art. 2, 26 UST 2403,1046 UNTS120 (entered into force Aug. 30,1975). Even within the framework of the FCCC and Kyoto Protocol, which generally soften demands on the poor, some comparatively rich countries, such as Kuwait, Saudi Arabia, and Singapore, have no emissions target while other comparatively poor countries, such as Greece and Portugal, do.

5 Note that arms limitations agreements, like climate change agreements, are responses to the problem of providing a public good: a reduced risk of war and its damages.

6 Some differentiations are arrived at as informal extensions of the original agreement, for example, the “burden sharing” in replenishment funds of the Global Environment Facility (GEF) and the International Development Association (IDA). See Global Environment Facility, Summary of Negotiations on the Third Replenishment of the GEF Trust Fund (Nov. 5, 2002)Google Scholar, at <http://www.gefweb.org/Replenishment/Joint_Summaries/joint_summaries.html>; International Development Association, The IDA Deputies: An Historical Perspective (Nov. 2001), at <http:// siteresources.worldbank.org/IDA/Resources/Seminar%20PDFs/deputS.pdf>. For informal (voluntary) differential contributions in the area of global public health, see Joint United Nations Programme on HIV/AIDS, at <http://www.unaids.org/html/pub/Governance/PCB01/Core_1995-2003_en_xls.htm>.

7 Other scoping questions remain. What about a nation that agrees to the same standards as the other parties but is subject to a common understanding that it will not really be held to them? Is a nation that signs a nondifferentiating treaty subject to a reservation unilaterally bringing about a de facto CDR? I incline to regard both as CDR, but others may disagree. The questions are only definitional and will not affect the analysis.

8 See, e.g., Washington Treaty, supra note 4; Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, Art. 111(2), 21 UST 483, 729 UNTS 161 (entered into force Mar. 5, 1970) (imposing different obligations on nonnuclear- weapon and weapon-possessing state parties, for example, regarding the right to acquire special fissionable material); Kyoto Protocol, supra note 2; infra text at note 23. Kyoto Protocol Annex I parties have a joint goal (reduction of 5% of 1990-level emissions by 2008-2012), but the allocation required to meet the joint target is negotiated inter se and varies. Non-Annex I parties currently have no obligation to commit themselves to quantity limits. Annex II parties have further special obligations beyond those of other Annex I parties relating to the provision of financial resources, technology transfer, and capacity building. The European Union directive on combustion boilers, Council Directive 88/609/EEC, on the limitation of Emissions of Certain Pollutants into the Air from Large Combustion Plants, as amended, 1988 O.J. (L336), provides that four of the wealthier member states (Belgium, Germany, France, and the Netherlands) must reduce their sulfur dioxide emissions by 70% of 1980 levels by 2003; three of the poorer member states (Greece, Ireland, and Portugal) were allowed to increase their emissions over the same period by 6-, 25-, and 79%, respectively. See SANDS, supra note 1, at 337. Variations in demands are not always so express; they can be insinuated, for example, through clauses requiring performance “in so far as possible and as appropriate,” or the equivalent. See Magraw, supra note 1, at 91.

9 Article 5 of the Amendments to the Montreal Protocol, supra note 1, while not adopting the term “CDR” or a cognate, requires industrialized countries to halt production and import of chlorofluorocarbons (CFCs) in 1996, while developing countries, identified by their low levels of CFC and halon use (<0.3 kg per/cap), are given until 2002 to eliminate 50% CFC production and consumption, 2007 to eliminate 85%, and 2010 for complete elimination. Report of the Eleventh Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Dec. 17, 1999, UNEP/OzL.Pro.l 1/10, (<0.3 kg per/cap), are given until 2002 to eliminate 50% CFC production and consumption, 2007 to eliminate 85%, and 2010 for complete elimination. Report of the Eleventh Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Dec. 17, 1999, UNEP/OzL.Pro.l 1/10, available at <http://www.unep.org/ozone/llmop-report.htm>.

10 LOS Convention, supra note 1, Art. 71 (“The provisions of articles 69 and 70 [establishing fishing rights for landlocked and geographically disadvantaged states] do not apply in the case of a coastal State whose economy is overwhelmingly dependent on the exploitation of the living resources of its exclusive economic zone.”).

11 The double standard is most discussed in the human rights area. See generally Oona, A. Hathaway, Do Human Rights Treaties Make a Difference fill Yale L.J. 1935 (2002)Google Scholar. See also Vice, Daniel, Implementation of Biodiversity Treaties: Monitoring, Fact-Finding, and Dispute Resolution, 29 N.Y.U.J. Int’l L. & Pol. 577, 631 (1997)Google Scholar (“State governments may feel that they can ratify... [environmental] treaties without fulfilling all of the treaty obligations, presenting the public image of an environmental commitment without having to dedicate resources to implementation.”).

12 See French, supra note 1, at 42-45.

13 Article 4(7) of the FCCC, supra note 1, suggests that “[t] he extent to which developing country Parties will effectively implement their commitments . . . will depend on” receipt of financial and technology transfers from the developed country parties. Article 20 of the CBD, supra note 1, adopts the same requirement. See Mark, A. Drumbl, Northern Economic Obligation, Southern Moral Entitlement and International Environmental Governance, 27 Colum. J. Envtl. L. 363, 367 Google Scholar (noting that demands by the South for financial and technological support as a condition of participation in international environmental agreements has become widespread).

14 See infra note 22 and corresponding text.

15 Constitution of the International Labour Organisation, June 28, 1919, Art. 427, 49 Stat. 2712, 2733-34, 225 CONSOL. T. S. 188, 385 Google Scholar; see also id., Art. 405.

16 For example, under the Washington Treaty, supra note 4, Japan was limited to 60% of the tonnage allotted to either the United States or the United Kingdom.

17 See General Agreement on Tariffs And Trade, opened for signature Oct. 30, 1947, Part IV, TIAS No. 1700, 55 UNTS 187. For the waiver of discriminatory tariffs (the General System of Preferences), see Decision of the Contracting Parties to GATT of 28 November 1979 on Differential and More Favorable Treatment Reciprocity and Fuller Participation of Developing Countries, GATTB.I.S.D. (26th Supp.) at 203 (1980). See Hart & Dymond, supra note 1, at 400-04 (maintaining that some differentiations proved counterproductive); see also GATT Art. XVIII (providing special dispensations for “contracting parties . . . the economies of which can only support low standards of living and are in the early stages of development”). Notwithstanding these exceptions, the overall thrust of GATT, as evidenced in Article I’s national treatment mandate, is certainly toward uniformity.

18 World Bank Group, General Information About Membership (Mar. 2003)Google Scholar, at <http://www.worldbank.org/>.

19 United Nations Association of the United States of America, The New UN Assessment Scale, at <http://www.unausa.org/programs/scale.asp> (last visited July 24, 2003).

20 Moreover, even without express formulas, it appears that the “burden sharing” in furtherance of other agreements has evolved informally. See supra note 9.

21 E.g., LOS Convention, supra note 1, Arts. 61(3), 62(3), 69(4), 70(5), 82, 140, 144, 148, 150, 152.

22 See id., Art. 71.

23 United Nations Conference on the Human Environment, Stockholm Declaration, June 16, 1972, UN Doc. A/CONF.48/14 (1972),princ. 12, reprinted in 11 ILM 1416,1419 (1972)Google Scholar [hereinafter Stockholm Declaration]; see also id., princ. 23, at 1420:

24 For example, under the 1991 Geneva Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Emissions of Volatile Organic Compounds or Their Transboundary Fluxes, U.N. Doc. ECE/EB AIR/30 (1991), reprinted in 31 ILM 568 (1992)Google Scholar, almost all signatories have taken on a commitment to reduce emissions by 30% from 1988 levels, and Hungary and Bulgaria have only committed themselves to “stabilize” at 1988 levels. See United Nations Economic Commission for Europe, Convention on Long-Range Transboundary Air Pollution: Executive Summary, available at <http://www.unece.org/env/lrtap/conv/conclusi.htm> (last updated Mar. 22, 2004).

25 See Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, 1522 UNTS 3, 26 ILM 1550 (1987)Google Scholar (entered into force Jan. 1, 1989).

26 See Amendments to Montreal Protocol, supra note 1, Art. 10.

27 FCCC, supra note 1, Art. 3 (1).

28 Kyoto Protocol, supra note 2.

29 See id., note 2.

30 Notice that there are “differentials” even among the Annex I countries inter se. See supra note 2. Another sort of differential is illustrated by Article 2 of the Sulphur Dioxide Protocol to LRTAP, which provided for the parties to reduce their national annual sulfur emissions or their transboundaiy fluxes by at least 30% from 1980 levels by 1993; the same nondifferentiating percentage reduction may differentiate in terms of quantity or required level of effort. 1979 Convention on Long-Range Transboundaiy Air Pollution on the Reduction of Sulphur Emissions or Their Transboundaiy Fluxes by at Least 30 Percent, July 8,1985, 27 ILM 698, 707 Google Scholar (entered into force Sept 2,1987). Depending on how we measure equality, the distinction between differentiating and nondifferentiating becomes ambiguous.

31 See supra note 2. Indeed, Arts. 3(5)-3(6) of the Kyoto Protocol, supra note 2, displays further differentiation in providing the “economies in transition” listed in Appendix 1 with the option of selecting a base year from which to make reductions more favorable than 1990.

32 See Harris, P. G. , Common but Differentiated Responsibility: The Kyoto Protocol and United States Policy, 7 N.Y.U. Envtl. L. J. 27 (1999)Google Scholar. Asecondary reason is the present administration’s determination not to accept any measure that would undermine the U.S. economy. See Letter to Members of the Senate on the Kyoto Protocol on Climate Change, 37 Weekly Comp. Pres. Doc. 11 (Mar. 13, 2001)Google Scholar [hereinafter Bush Letter on Kyoto]. The Weekly Compilation of Presidential Documents is available online at <http://www.whitehouse.gov>. It is unclear what degree of emissions reduction, if any, the administration deems consistent with the economic welfare of the United States, or even whether, at this point, the United States would sign the Kyoto Protocol under any conditions.

33 See Harris, supra note 32. President Bill Clinton intimated that it would be acceptable if commitments were made only by the “key” developing countries. See Rajamani, supra note 1, at 120,120 n.l. In 2001, however, President George W. Bush omitted even these qualifications in indicating his determination to oppose the Kyoto Protocol “because it exempts 80 per cent of the world, including . . . China and India from compliance, and would cause serious harm to the U.S. economy.” Bush Letter on Kyoto, supra note 32. A more current presentation of President Bush’s position can be found in the Clear Skies and Global Climate Change Initiative, 38 Weekly Comp. Pres. Doc. 232 (Feb. 14, 2002). Developed countries fear that if they tolerate the LDCs’ development to follow lax, environmentally destructive lines—possibly repeating the errors of developing countries—in fifteen or twenty years, when we hope that their economies will have changed, they may find bad habits hard to break. See Richard, B. Stewart, Environmental Regulation and International Competitiveness, 102 Yale L J. 2039, 2080 (1993)Google Scholar; Weisslitz, Michael, Rethinking the Equitable Principle of Common but Differentiated Responsibility: Differential Versus Absolute Norms of Compliance and Contribution in the Global Climate Change Context, 13 Colo. J. Int’l Envtl. L. & Pol’y 473,488–99 (2002)Google Scholar. The environmental Kuznets curve argument suggests that with rising wealth, the LDCs will clean up naturally, but the effect is less clear when it involves remedying transboundaiy emissions.

34 The final text can be found in the Eighth Conference of the Parties to the UN Framework Convention on Climate Change, 12 EARTH NEGOTIATIONS BULL., No. 209, available at <http://www.iisd.ca/linkages/download/ asc/enbl2209e.txt>. The New York Times reported that “the wording was a victory for the developing countries which fought hard to insure that the declaration did not include any possible future measures they might have to abide.” Proposal to Reduce Greenhouse Gases Loses Momentum, N.Y. Times, Nov. 2, 2002, at A4. Yamin, Farhana Google Scholar, a close observer of the FCCC negotiations, observed that

E-mail from Farhana Yamin, Fellow in Environment, Institute of Development Studies, University of Sussex, to Christopher D. Stone (Mar. 26, 2002, 09:24 PST) (on file with author).

35 See generally David, G. Victor, The Collapse of the Kyoto Protocol (2001)Google Scholar, which provides a succinct critical examination of the breakdown at Kyoto and makes suggestions for getting the process back on a more realistic footing.

36 See Temperature in 2002 Warmer Than 2001; Underlying Trend Continues, Scientists Say, 26 Int’l Env’t Rep. (BNA) 37 (2003)Google Scholar.

37 Speaking at the closing plenary meeting of COP-8, Steen Gade, who headed the European Union delegation, quoted a statement from Samoa’s representative: “We cannot just sit here through meeting after meeting, year after year, with one side of the room saying we cannot act alone, and the other side saying we cannot accept obligations.” Declaration Emphasizes Development Plan, Urges Swift Ratification of Kyoto Protocol, 25 Int’l Env’t Rep. (BNA) 1055 (2002)Google Scholar. Indeed, Article 3(9) of the Kyoto Protocol, supra note 2, appears to force opening negotiations on commitments beyond 2012, by 2005 at the latest. At this point, however, it is doubtful that the Bush administration would sign onto the Kyoto Protocol under any conditions.

38 Bodansky, Daniel, The United Nations Framework Convention on Climate Change: A Commentary, 18 Yale J. Int’l L. 451, 451, 501-02 (1993)Google Scholar (indicating the express disavowal of industrialized countries that they were accepting CDR as a customary principle); see also Cullet, Philippe, Differential Treatment in International Law: Towards a New Paradigm of Inter-state Relations, 10 Eur. J. Int’l L. 549,579 (1999)CrossRefGoogle Scholar (expressing skepticism that CDR has risen to customary international law); Rajamani, supra note 1, at 124 (“ [CDR] cannot technically be termed a ‘principle’“). However, Edith Brown Weiss submits that “[t]hough nonbinding, CDR has significantly affected international legal discourse.” Edith, Brown Weiss, Common but Differentiated Responsibilities in Perspective, 96 ASIL Proc. 366, 366 (2002)Google Scholar.

39 That is to say, applicable to all nations independently of their acceptance of treaties endorsing it.

40 See Committee on Trade and the Environment, World Trade Organization, The Effects of Environmental Measures on Market Access, Especially in Relation to Developing Countries, in Particular the Least-Developed Among Them, WTO Doc. WT/CTE/W/207 (May 21, 2002), available at <http://www.dfat.gov.au/trade/negotiations/ environment/pdf/wt_cte-w_207_market_access.pdf>. Paragraph 17, for example, states: “The CTE needs to further debate the ways in which the negative effects of environmental measures on the market access of developing countries can be mitigated so as to achieve the objective of sustainable development in a manner consistent with the principle of common but differentiated responsibilities.”

41 Biniaz, Susan, Remarks (on common but differentiated responsibility), 96 ASIL Proc. 359,361 (2002)Google Scholar. Biniaz argues that the “so-called principle . . . is over-argued; and . . . breeds laziness in the negotiating process.” Id.

42 The disregard of wealth is not without exceptions. See Gregory, C. Keating, Pressing Precaution Beyond the Point of Cost-Justification, 56 Vand. L. Rev. 653,687–97 (2003)Google Scholar (identifying several regulatory schemes that reject cost-benefit analysis in favor of “feasible risk reductions,” in which the costs of measures imposed to eliminate significant risks are constrained by the requirements of continued viability of the industry). The Restatement (Second) Torts makes an element in exacting damages for nuisance whether “the financial burden of compensati[on] . . . would . . . make the continuation of the conduct not feasible.” Restatement (Second) of Torts §826(b) (1979).

43 That is, principles generally accepted as law based on general and consistent practices states have followed from a sense of legal obligation. Restatement(Third) of the Foreign Relations Law of the United States §102 (2) (1987) [hereinafter Restatement (Third)].

44 See Swanson, Timothy, Negotiating Effective International Environmental Agreements: Is an Objective Approach to Differential Treatment Possible? 1 Int’l Envtl. Agreements: Politics, Law and Economics 125 (2001)CrossRefGoogle Scholar.

45 Olson, Mancur, The Logic of Collective Action: Public Goods and the Theory of Groups 51 (1965)Google Scholar; see also Sandler, Todd, Collective Action: Theory and Applications 56–60 (1992)Google Scholar (analyzing Olson’s position that impediments to providing public goods can be addressed by selectively tying some parties’ provision with private benefits as inducement). But as pointed out in the following text, the benefit need not be a favorable clause.

46 Richard, H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 Int’l Org. 339 (2002)Google Scholar. Steinberg raises the very issue in questioning why powerful entities, like the European Union and the United States, so often support consensus decision-making rules. Id. at 340. Steinberg’s answer is that, in fact, the powerful states have not been restrained by formally “equal” rules from imposing their wills on the weak. Id.

47 Stockholm Declaration, princ. 21. The language of the principle, as endorsed by the Restatement (Third) of Foreign Relations Law is interesting in adding the italicized (by the author) qualification to a state’s obligation “to take such measures as may be necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control (a) conform to generally accepted international rules and standards for the prevention, reduction, and control of injury to the environment of another state.” RESTATEMENT (THIRD), supra note 43, §601 (1) (a). It is uncertain whether this was intended to make an excuse for poorer nations as such; more likely a crude cost-benefit qualification was intended, one that might excuse the United States from responsibility in some circumstances.

48 The difficulties the Scandinavian countries have encountered stanching Russia’s transboundary sulfur dioxide (S02) fluxes from its nickel smelters on the Kola Peninsula may suggest that, in practice, principle 21 recognizes economic hardship de facto; but no one is suggesting that such hardships legitimate the damage. See generally Kotov, Vladimir & Nikitina, Elena, Norilsk Nickel: Russia Wrestles with an Old Polluter, Env’t, Nov. 1996, at 6 Google Scholar.

49 At the 1998 Stockholm International Symposium on Hazardous Waste Disposal, a great range of issues was brought up, including intergenerational equity and the impact such wastes have on nonhuman life—but no one raised CDR. See Stockholm Environment Institute, Proceedings of the International Symposium on Hazardous Waste Disposal: Health and Environmental Criteria and Standards (Apr. 1999), available at <http://www.sei.se/dload/1999/Proceedings.pdf>

50 The rules of the Kyoto Protocol, supra note 2, do not go into force until ratified by nations whose emissions aggregate 55% of the global total. See id., Art. 25. With ratifications up to 44%, Russia, with its 17%, is capable of putting the Protocol over the top; sitting in the n-th signer’s catbird seat, it enjoys strong courting from those most anxious for Kyoto to succeed. But, as of this writing, and even in the face of favorable side inducements in the form of technical assistance, it has not signed on. See EU Should Step up Efforts to Cajole Russia into Ratifying Kyoto Pact, Italian Official Says, 26 Int’l Env’t Rep. (BNA) 669 (2003)Google Scholar.

51 To seal the 1911 North Pacific Fur Seal Treaty, the United States made immediate side payments of $100,000 to both Great Britain and Japan. Barrett, Scott, Environment and Statecraft 34 (2003)Google Scholar. But as Barrett notes, the efficacy of ex ante side payments in the international arena is undermined by obvious enforcement difficulties; the signatory can accept the payment, join the agreement—and then withdraw. Id. at 336.

52 In 1994, the “price” for North Korea’s continued participation in the Nuclear Non-Proliferation Treaty (abandonment of its nuclear weapons production and opening to inspection) was that the United States supply it with fuel oil and construct two light-water reactors. Riding, Alan, U.S. and North Korea Sign Pact to End Nuclear Dispute, N.Y. Times, Oct. 22, 1994, at A5 Google Scholar. There are widespread reports that the inducement for certain nonwhaling nations to join the International Whaling Convention (and to vote sympathetically with Japan) has been the lure of Japanese assistance in reducing depletion of the ozone shield. See DeSombre, Elizabeth, Distorting Global Governance; Membership, Voting and the IWC, in Toward a Sustainable Whaling Regime 183,187–88 (Robert, L. Friedheim ed., 2001)Google Scholar.

53 See David, G. Victor, The Regulation of Greenhouse Gases: Does Fairness Matter? in Fair weather? Equity Concerns in Climate Change 193,197 (Ferenc, L. Tóth ed., 1997)Google Scholar (suggesting thatPoland’s expenditure on pollution abatement increased with an eye toward acceptance into the European Union).

54 See James, E. Krier, On the Topology of Uniform Environmental Standards in Federal System—and Why It Matters, 54 Md. L. Rev. 1226, 1230 (1995)Google Scholar; Weisslitz, supra note 33, at 486. Weisslitz, citing Richard Stewart, also maintains that imposing less stringent rules on developing countries may come back to haunt all parties, the weak practices becoming disentrenchable. Id. at 489.

55 Swanson, supra note 44, at 129. In view of the added costs of differentiation, Swanson would approve it only in exceptional circumstances, where recognition of a criterion will not encourage opportunistic behavior; for example, recognizing geographic distinctions and predominant skin color in the context of ozone negotiations will not result in parties altering their location and skin color. Id. at 132-33. Swanson would admit developmental stage on the same basis, viz., the unlikelihood that a state will strategically elect to remain undeveloped in order to improve its future bargaining hand. But of course, once stage of development is admitted to be relevant, there are costs of sorting out who is “developed,” particularly if no single metric, such as per capita gross national product, can command consensus. Such an issue has already broken out in the FCCC. Issues in the Negotiating Process, Request from a Group of Countries of Central Asia and Caucasus, Albania and Moldova Regarding Their Status under the Convention, at <http://unfccc.int/issues/cacam.html> (updated Mar. 17,2003) (documenting request by Armenia and others at the COP-6, pt. II (Bonn, July 2001), regarding the definition of the term “developing countries” as used in the Convention, the Protocol, and COP decisions to determine recipients of financial, technological, and capacity building support).

56 See, e.g. Johannesburg Declaration, supra note 3, para. 89 (urging debt relief and, as appropriate, debt cancellation).

57 Nash, J.F., The Bargaining Problem, 18 Econometrica 155,155–62 (1950)CrossRefGoogle Scholar.The Nash solution locates the outcome at the point that maximizes the product of Rich and Poor’s utilities, which, assuming declining marginal utility of wealth, will not accord with a 50:50 division of the wealth-measured gains. The fact that Poor would be expected to draw less than 50:50 division is not, in and of itself, a moral argument that Poor ought to get less, without demonstrating that the “just” division is that which replicates the solution the parties would have achieved through rational bargaining. This is consistent with the Realist position that powerful states will dominate weak states. See Steinberg, supra note 46.

58 This explication of Nash owes to John Harsanyi. See Barry, Brian, Theories of Justice 12–24 (1989)Google Scholar.

59 A representative host of authorities (e.g., “It is almost axiomatic that an effective international agreement to limit C02 [carbon dioxide] emissions (or other greenhouse gases) will not be undertaken unless it is perceived as fair”) is gathered in Benito, Müixer Justice in Global Warming Negotiations: How to Obtain a Procedurally Fair Compromise 5 (1998)Google Scholar.

60 Evidence to support the claim that fairness exercises a pervasive influence is presented in Thomas, M. Franck, Fairness in International Law and Institutions (1995)Google Scholar. But see Victor, supra note 53 (doubting the influence in the climate change negotiations). See also Francesco, Bosello et al., Can Equity Enhance Efficiency? Some Lessons From Climate Negotiations, (Discussion Paper No. 3606, Centre for Economic Policy Research Feb. 2003)Google Scholar.” [A]lbeit intuitive, there is no substantial analysis that a more equitable distribution of the burden of reducing GHG emissions would induce more countries to sign and ratify the Kyoto Protocol or another climate agreement.” Id. at 4.

61 Is the United States being “unfair” to insist that China and India take on responsibilities under the Kyoto Protocol, or are China and India being “unfair” for refusing to commit to it?

62 The implications of this distinction are developed in Sandler, Todd & Daniel, G. Arce, Pure Public Goods Versus Commons: Benefit-Cost Duality, 79 Land Econ. 355 (2003)CrossRefGoogle Scholar. The authors demonstrate that while game theorists have traditionally represented both financing public goods (eliciting contributions) and governing open access commons (restraining overgrazing) as alike expressions of the Prisoner’s Dilemma, closer attention to this benefit-cost duality reveals basic underlying differences that lend to independent representations, and different policy implications, for each.

63 See Sandler, Todd, Collective Action and Transnational Terrorism, 26 World Econ. 779 (2003)CrossRefGoogle Scholar.

64 A number of factors could lower Poor’s demand, including situational considerations (distance from equator in the case of ozone-shield-depleting agents) and differences in and marginal utility of wealth being tapped for amelioration of the risk. It is imagined that Poor, lagging behind Rich in stage of development, would not be at the same point on the environmental Kuznets curve, that is, would not have put as high a share of its national income into pollution abatement (amenities supply). It should be remembered that some risks, such as those of sea level rise from climate change, are especially severe for some Poor countries even in the medium term, e.g., island states.

65 See Kyoto Protocol, supra note 2, Art. 11 (2) (b) (providing such financial resources, including for the transfer of technology, needed by the developing parties to meet the agreed full incremental costs of advancing the implementation of certain commitments); Amendments to Montreal Protocol, supra note 1, Art. 10(1) (providing that the multilateral fund, funded by the developed parties, “shall meet all agreed incremental costs of such Parties in order to enable their compliance with the control measures of the Protocol”). The theoretical background of transferring money versus in-kind technology is examined in Vicary, Simon & Sandler, Todd, Weakest-Link Public Goods: Giving In-Kind or Transferring Money, 46 Eur. Econ. Rev. 1501 (2002)CrossRefGoogle Scholar.

66 A nice illustration of such cooperation is the GEF-backed Latvian waste management project. The target waste site in Riga not only pollutes groundwater, it generates methane, a greenhouse gas with far greater blocking power than CO₂. GEF funds will support installation of technology that captures the methane and uses it to generate electricity, thereby reducing GHG emissions both directly, to the extent methane is replaced by more benign atmospheric input, and indirectly, to the extent the electricity provided through the captured methane relieves demand that would have been met through fossil fuels. See World Bank, Latvia—Solid Waste Management and Landfill Gas Recovery Project (GEF Project) (Feb. 28, 1998)Google Scholar, at<http://www-wds.worldbank.org/servlet/WDS_IBank_Servlet? pcont=details&eid=000009265_3980429110806>.

67 See William, J. Broad, Scientists Dream up Bold Remedies for Ailing Atmosphere, N.Y. Times, Aug. 16, 1988, at CI Google Scholar.

68 See SANDLER, supra note 45, at 42-44.

69 See Sandler, Todd, Economic Concepts for the Social Sciences 40 (2001)Google Scholar; Sandler & Arce, supra note 62, at 357 (absent special circumstances, such as the game being played indefinitely and repeatedly with some threatbased strategy, the mutual contribution Pareto-optimal will not be achieved).

70 I put aside for a moment the more demanding alternative that the Rich redistribute even to the point of emerging less well-off (see below).

71 Rio Declaration on Environment and Development, UN Conference on Environment and Development, UN Doc. A/CONF.151/5/Rev. 1 (1992), 31 ILM 874 (1992)Google Scholar [hereinafter Rio Declaration]. The principles are probably but guides to negotiation, not legally binding even as instantiated in the FCCC. See Freestone, David, The Road from Rio: International Environmental Law After the Earth Summit, 6 J. Envtl. L. 193 (1994)CrossRefGoogle Scholar. However, Freestone later ventures that

International Law and Sustainable Development: Past Achievements and Future Challenges 4 (Boyle, Alan & Freestone, David eds., 2001)Google Scholar.

72 Rio Declaration, supra note 71, princ. 6.

73 Id., princ. 7.

74 Consider, in regard to this last point, the states of the former Soviet Union, which include some nations that are historically heavy GHG-emitters—high-ranking “causers”—but are relatively lower in capacity to remediate.

75 See Forero, Juan, As Andean Glaciers Shrink, Water Worries Grow, N.Y. Times, Nov. 24, 2002, at A3 Google Scholar.

76 FCCC, supra note 1, Art 4(8) (enjoining the parties to “give full consideration to what actions are necessary... to meet the specific needs and concerns of developing country Parties”). Article 4(9) is similar.

77 Consider the negotiations over ozone-depleting substances. The thinning of the ozone shield poses its gravest risks to light-skinned populations living at high latitudes. That is because the thinning is most pronounced toward the magnetic poles and its principal direct human health hazard is skin cancer to which fair-skinned people are most susceptible. Therefore, it was not surprising, at the London ozone negotiations most markedly, to find (in the Northern Hemisphere) the Scandinavian countries, Germany, and Canada, and (in the Southern) New Zealand and Australia, taking the lead in pressing for the most rapid phaseout of ozone-depleting agents. Their citizens needed the agreement more than the Indians and Chinese, who resisted signing onto the phaseout unless they were compensated by side agreement for the higher costs of substitute refrigerants. The more vulnerable were expected to pay the less vulnerable.

78 The obligations of the Rich to succor the Poor are especially strong to the extent the Rich may be the cause of the Poor’s plight, and not merely bystanders to erratic nature.

79 See Onora, O’Neill, Faces of Hunger: an Essay on Poverty, Justice and Development 144–163 (1986)Google Scholar.

80 See Singer, Peter, Famine, Affluence and Morality, in Writings on an Ethical Life 105, 105–24 (2000)Google Scholar.

81 Rio Declaration, supra note 71, princ. 7.

82 Many would ground a polluter pays principle on “fairness,” but in its welfare economic version an ideally efficient (Pigovian) tax is set at a level that induces efficient adjustments by the “victims” as well as by the polluters. Efficiency concerns dominate corrective justice. Unlike recovery in tort, the state, not the victim, collects the fee.

83 The concept emerged as the “main responsibility principle” at a Beijing symposium in 1991. See Bodansky, supra note 38, at 479. One Marshall Islander dismissed at COP-7 suggestions that island nations should adapt to changing conditions by building surge barriers and storm drains by noting: “Whoever caused the problem has to clear [it] up.” AP, Amid Rising Waters, Island Nations Plead Case at Climate Conference, Nov. 17, 2000, available at <http://www.cnn.com/2000/NATURE/11/17/climate.conference.ap>.

84 India Wants $2 Billion from Others to Sign Ozone Depletion Montreal Protocol, 12 Int’l Env’t Rep. (BNA) 389 (1989)Google Scholar.

85 In other words, the fisher’s ownership of the fish taken from a common pool is recognized, as long as the fisher leaves for others all that the others can use. See Locke, John, Second Treatise on Government §27 (Thomas, P. Peardon ed., 1952)Google Scholar (1690).

86 It is tempting to sidestep these conundrums by refocusing the argument away from the damage formerly imposed an”d toward die continuing benefits received. The Poor can charge that those of us with the good fortune to have been born in the developed world are the beneficiaries of bygone extravagances, wherever our forebears were living in their lifetimes at the time of the conduct. We have (it may be argued) a differentiated responsibility rooted not as much in the duty to pay damages for consummated wrongs as, alternatively, in either the duty to make restitution of inequitable gains or to compensate for die higher costs that late industrializers face under die more confining legal targets required by the early industrializers’ appropriations.

87 Oliver Wendell Holmes rooted adverse possession in the claimant’s “deepest instincts” of resentment at having to relinquish property she had used as her own over a long period of time. Oliver, Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 477 (1897)Google Scholar.

88 Kyoto Protocol, supra note 2, Art. 3(3), (5), (7) and Annexes referred to dierein.

89 See Shue, Henry, Subsistence Emissions and Luxury Emissions, 15 Law & Pol’y 39 (1993)CrossRefGoogle Scholar.

90 See supra pp. 291-92.

91 Johannesburg Declaration, supra note 3, Art. 89.

92 Daniel, C. Esty & Mendelsohn, Robert, Moving from National to International Policy, 31 Pol’y Sci. 225,228 (1998)Google Scholar. Esty and Mendelsohn tout efficiency, as many northern scholars would do, “as a step toward credibility.” But whether demonstrating that a solution is efficient adds to credibility among the Poor is uncertain. See Tarlock, A. Dan Environmental Protection: The Potential Misfit Between Equity and Efficiency, 63 U. Colo. L. Rev. 871,876–81 (1992)Google Scholar (tracing “the historical roots of the subordination of equity to efficiency”).

93 See Declaration on the Right to Development, GA Res. 128, UN GAOR, 41st Sess. (1986).

94 Tarlock observes that since the 1992 UNCED meeting in Stockholm, “developing countries have generally urged that they have an ‘equitable’ right to pollute.” Tarlock, supra note 92, at 871 n.3.

95 See World Council of Churches, Press Release, WCC Challenges Rich Countries at Climate Change Conference in The Hague (Nov. 14,2000), available at <http://www.wcc-coe.org/wcc/news/press/00/34pre.html>. At COP-6, the discussions ended up with a decision that “the use of [credit from investment on foreign soil] mechanisms shall be supplemental to domestic action,” with the facilitative branch of the compliance committee being charged “to assess” the information provided. Summary of the Resumed Sixth Session of the Conference of the Parties to the UN Framework Convention on Climate Change, Earth Negotiations Bull. July 30, 2001, at 6 Google Scholar, available at <http://www.iisd.ca/voll2/enbl2176e.html>.

96 John Rawls, a Theory of Justice 12 (1971).

97 See Brian, M. Barry, The Liberal Theory of Justice 133 (1973)Google Scholar.

98 A good and concise exposition of the daunting area of transnational and international distributive justice is found in Buchanan, Allen & Golove, David, Philosophy of International Law, Oxford Handbook of Jurisprudence and Philosophy of Law 868, 897–902 (Coleman, Jules & Shapiro, Scott eds., 2002)Google Scholar.

99 However, institutional sympathy for variations in wealth may turn up at sentencing. See U.S. Sentencing Guidelines Manual §8(C) (3.3) (finding applicable to convicted organizations whose fine in strict accordance with the guidelines might “substantially jeopardiz[e] the continued viability of the organization”).

100 The position in the text is in accord with the Louis Kaplow and Steven Shavell warning that if independent weight is given to a notion of morality under a measure of social welfare, in some situations the utility of every individual will be lowered. Kaplow, Louis & Shavell, Steven, Any Non-Welfarist Method of Policy Assessment Violates the Pareto Principle, 109 J. Pol. Econ. 281, 284 (2001)CrossRefGoogle Scholar.

101 The maximum repair bill that the owner can be forced to pay is $450, with caps declining for cars by age of vehicle, down to $50 for the oldest (1971 and earlier vintage). Cal. Health & Safety Code §44016 (2003). In practice, the administration is complex, providing for consumer assistance centers that enable repairs by picking up some portion of the bill in accordance with owner’s income. Cal. Dep’t of Consumer Affairs—Bureau of Automotive Repair, “Smog Check Consumer Assistance Application Package” aKhttp://www.smogcheck.ca.gov/ftp/pdfforms/ cap_app.pdf> (last visited Apr. 2, 2004). In some cases, excess repair bills of the Poor are shared by or picked up by the state, while in other cases, cars that cannot be brought into compliance may receive exemptions. See id.

102 Perhaps most crucially, California can tax and the United Nations cannot. See Kaplow, Louis & Shavell, Steven, Should Legal Rules Favor the Poor? Clarifying the Role of Legal Rules and the Income Tax in Redistributing Income, 29 J. Legal Stud. 821 (2000 CrossRefGoogle Scholar) (arguing that, assuming taxes are available, it is generally more efficient to transfer a dollar simply through raising taxes than through skewing regulatory regimes toward redistributive goals). But see Daniel, A. Farber, What (If Anything) Can Economics Say about Equity? 101 Mich. L. Rev. 1791 (2003)Google Scholar (maintaining diat in some circumstances legal (regulatory) rules can be superior redistributive mechanisms, even from an efficiency perspective). Whoever is right, if taxation as an alternative is moot internationally, the case for “coupling” in the international arena, though complex, must be considered alive.

103 See Drumbl, supra note 13, at 379. Drumbl adds that transfers under international environmental agreements may exacerbate the developmental gap because, first, they may divert funds to resolve global-scale problems, thereby overlooking some of the worst environmental problems facing the very poorest countries, such as dirty water, which are local; and second, donors are likely to favor transfers to those nations with the best-developed regulatory and market institutions, and are therefore apt to provide a better return on the donors’ investments with lower transactions costs. Id. at 379-80.

104 Johannesburg Declaration, supra note 3. Of course, they had always been part of the agenda; as the FCCC recites, “economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.” FCCC, supra note 1, Art. 4(7). But at Stockholm (1972), supra note 23, and Rio (1992), supra note 71, the environmentalists had lead, rather than shared, billing.

105 The Poor might want the Rich to do more to clean up the global environment. But this does not mean that, given the choice of the Rich putting another dollar into the cleanup and putting it into developmental aid, the Poor would prefer the former.

106 The theory of “second best” is that if policies are ranked in order of preference under certain conditions, and if those conditions are unrealized, the best alternative to the “first-best” choice is not necessarily the alternative that was next best under the unrealizable conditions, had they been obtained. The circumstances that make “first best” unrealizable may make it imperative to rerank all options from the start; the most viable of the new set of alternatives may be an option—the second best—that is other than the next ranked choice in the original ranking. See generally Richard, G. Lipsey & Lancaster, Kelvin, The General Theory of Second-Best, 24 Rev. Econ. Stud. 11 (1956)Google Scholar.

107 As illustrated by figure 4 and the accompanying text.

108 The table is composed from data presented in G, Marland. et al., Global, Regional, and National Fossil Fuel CO₂ Emissions, in Online Trends: a Compendium of Data on Global Change (Carbon Dioxide Information Analysis Center & U.S. Dep’t of Energy 2003)Google Scholar, available at <http://cdiac.esd.ornl.gov/trends/emis/em_cont.htm>. Note that the table reflects not all GHGs, but only CO₂ from activities other than land clearing. Putting water vapor aside, CO₂ constitutes about 60% of total GHG accumulation, referenced by radiative forcing power. Calculated from Intergovernmental Panel on Climate Change, Climate Change 2001: The Scientific Basis, Contribution of Working Group I to the Third Assessment Report, tbl. 6.1, available at <http://www.grida.no/climate/ipcc_tar/ wgl/221.htm> (last visited Aug. 12, 2003).

109 By some estimates, Russia and Ukraine, whose carbon-generating industries have collapsed since their Kyoto baseline years, could turn around and sell their “hot air” entitlements, which they could not use anyway, for $20 to f 170 billion. See Victor, supra note 35, at 10.

110 For an excellent review of the options, see Barrett, Scott & Robert, N. Stavins, Increasing Participation and Compliance in International Climate Change Agreements (John, F. Kennedy School of Government, Harvard University, Working Paper No. RWP02-031, Aug. 14, 2002)Google Scholar, at<http://ksgnotes1.harvard.edu/research/wpaper.nsf/rwp/ RWP02-031 ?OpenDocument>.

111 See Targulian, Oganes & Hirsch, Helmut, Russia: No Oil and Gas Leaks, No Nuclear Power Plants (Apr. 2000)Google Scholar, available at http://greenpeace.no/3media/pr/rapportpdf> (assessing savings that could be realized, perhaps quite cost-effectively, with jump-starting efforts). Pipeline leaks alone in Russia are estimated to generate some 35 million tons of methane emissions annually—the figure corresponding to Germany’s annual CO₂ emission level. Baranova, Irina & CEE Bankwatch Network, Leaking Operations: Environmental Consequences of World Bankand EBRD Involvement in the Russian Oil Sector, available at <http://www.bankwatch.org/publications/studies/leakingop/index.html> (last updated Apr. 20, 2001)+(last+updated+Apr.+20,+2001)>Google Scholar.

In fact, the institutional framework for addressing the problem bilaterally is already in place in the form of the U.S./Gazprom Working Group, a joint initiative between Gazprom and the U.S. Environmental Protection Agency and Department of Energy. See Popov, Ilya & Pacific Northwest National Laboratory, Estimating Methane Emissions from the Russian Natural Gas Sector, PNNL 13462 (Mar. 2001)Google Scholar, available at <http://www.pnl.gov/aisu/pubs/Gazprom.pdf>.

112 In 2002, the Bush administration increased its contribution to the Global Environment Facility, the premier multilateral funding mechanism for global environmental protection, by $70 million, pledging $500 million over four years, as part of a $2.92 billion replenishment to further the GEF through June 2006. See Gable, Eryn, Development: Nations Agree to $3b Enviro Fund Replenishment, Greenwire, Aug. 8, 2002 Google Scholar, international.

113 See Swanson, Timothy & Mason, Robin, The Impact of International Environmental Agreements: The Case of the Montreal Protocol (Fondazione Eni Enrico Matte Note di Lavoro, Working Paper No. 81, 2002)Google Scholar, available at <http://www.feem.it/NR/rdonlyres/5542BA50-4119-4546-8989-3D4CC55CEA37/184/8102.pdf> (arguing that the cooperative path promoted by the regime has significantly diminished CFC emissions from their precooperative trajectory, and also suggesting that developing countries bear disproportionately larger costs). The wheels for success are greased by side payments organized under the multilateral fund, see Amendments to Montreal Protocol, supra note 1, Art. 10, which eases developing countries away from ozone depleting agents (ODAs) through a combination of tailored investment, noninvestment, policy, and regulatory support measures. As of the close of 2001, the World Bank and its country partners had phased out more than 80% of the total amount of ODAs to be phased out under the multilateral fund, with grant financing of over U.S.$420 million (about 45% of the funding available for investment projects). See World Bank to Finance Projects in Four Countries to Fight Global Warming: Projects Worth USD35 Million will Protect the Ozone Layer, Dec. 7,2001, M2 PRESSWIRE (Ozone Depletion Network Online Today). See generally World Bank Montreal Protocol: 2002 Group Business Plan, at <http://www.worldbank.org/montrealprotocol>). Whether the marginal cost of the reductions, $3.81/kg/ODA, id. at 16, is efficient, is of course harder to say.

114 See William, B. Gould IV, Labor Law for a Global Economy: The Uneasy Case for International Labor Standards, 80 Neb. L. Rev. 715, 721 (2001)Google Scholar.

115 “USAID appears to have established as a priority the importance of influencing domestic policy in the recipient countries.” Benjamin, F. Nelson, International Affairs Budget: Framework for Assessing Relevance, Priority and Efficiency (Washington, DC: General Accounting Office, Oct. 30,1997)Google Scholar (statement of Benjamin F. Nelson, director, international relations and trade issues, National Security and International Affairs Division, General Accounting Office, before the Senate Committee on the Budget), at <http://www.conginst.org/resultsact/PDF/NS98018.PDF>.

116 And there is the ominous prophesy of the Johannesburg Declaration, supra note 3, Art. 12: “The deep fault line that divides human society between the rich and the poor and the ever-increasing gap between the developed and developing worlds pose a major threat to global prosperity, security and stability.”