A. Defining “Unequal” in the Concept of “Unequal Treaties”

While few commentators have successfully tackled the question of what the notion of “inequality” in the concept of unequal treaties entails, Stuart Malawer is one scholar who has. After a detailed examination of legal opinion and state practice with respect to the concept,Footnote ¹⁶ Malawer concludes that the term “unequal treaty” is most commonly understood to denote treaties falling into at least one of the following categories: (1) treaties containing formally equal treaty provisions, but which are, in practice, unequal obligations, which may occur as a result of unforeseen developments; (2) treaties containing formally unequal obligations, regardless of the actual effect of such treaties; (3) formally equal treaties imposing unequal obligations in practice, and concluded following the threat or use of economic or military force; (4) treaties containing formally unequal terms concluded following the threat or use of economic or military force; (5) treaties not otherwise unequal, but concluded following the use of economic force; and (6) treaties not otherwise unequal, but concluded following the use of military force. Malawer also draws a distinction between “imposed treaties” and other “unequal treaties”, reserving the label “imposed treaty” for international agreements concluded through the threat or use of aggressive military force.Footnote ¹⁷

Treaties “procured by the threat or use of force in violation of the principles of international law”—Malawer's category of “imposed treaties”—are deemed void by Article 52 of the Vienna Convention.Footnote ¹⁸ Economic force, however, is not currently recognized as a sufficient factor in itself to vitiate state consent in treaty relations. Nor are treaties falling into Malawer's categories (1) to (3) considered non-binding under current rules of international treaty law on the basis of their inequality. This raises the question of whether some or all varieties of inequality should ever allow a state party to escape its treaty obligations—a question which Malawer does not confront directly.

Malawer's analysis recognizes that international law has never been concerned with ensuring “equality” in treaty relations, but has instead focused on preventing gross inequalities in the making of bargains. Indeed, to require or even desire equality in treaty relations would be simply to beg the question: “Equality of what”? If equality of bargaining power is required or desirable, why should inequality of negotiating power matter if the content of the final treaty treats the less powerful party equally or more favourably than the more powerful party? If equality of treaty content is desirable, does this mean that the treaty should allocate costs and benefits equally between all the parties, or does it mean that the costs and benefits should be proportional to the capacity to pay and the individual needs of each state respectively?

B. Historical Debates and the Unequal Treaties Concept

Early Western scholars of international law, including Grotius, Pufendorf, Vattel, Wolff, and Wildman,Footnote ¹⁹ recognized that treaties could be made on either equal or unequal terms, but did not generally consider mere inequality to be a valid ground for deviating from the strict rule of pacta sunt servanda. This view began to change in connection with debates surrounding the validity of treaties imposed on China, Siam, and Japan in the nineteenth century.Footnote ²⁰ Particularly in China, these treaties were often concluded at gunpoint, and typically included provisions on “extraterritoriality, non-reciprocal tariff and most-favoured nation privileges, territorial cessions and leases, the stationing of foreign military units, and many other humiliating restrictions upon sovereignty”.Footnote ²¹ Generalizations about the nature and effect of these treaties are hard to make, however. For example, the way the treaty system developed in Japan during the second half of the nineteenth century proved to be very different from what was happening in China at the same time.Footnote ²² Auslin, for example, shows that Japan, unlike China, “on the whole … escaped the imposition of a regime of control that favoured foreigners”.Footnote ²³

Uncertainties and ambiguities surrounding inequality in treaty relations continued well into the twentieth century. Even China, “perhaps the greatest of the unequal sovereigns”,Footnote ²⁴ has remained equivocal despite the lessons of its history. As Hungdah Chiu has noted, “application of the concept of ‘unequal treaties’ by Communist China” has been “flexible and seems largely determined by political considerations”.Footnote ²⁵ For example, in 1945, the Republic of China granted to the Soviet Union many privileges, including joint possession over several strategic Chinese assets. The agreements by which this was achieved were, by definition, unequal, as the Soviet Union did not grant China any reciprocal privileges. Nevertheless, even following the birth of the People's Republic of China (PRC) in October 1949, “neither Communist Chinese leaders nor scholars have ever publicly denounced those agreements”.Footnote ²⁶ This attitude was a striking contrast to China's early readiness to denounce as unequal post-war bilateral treaties signed by Western powers, such as the 1946 trade agreement between the US and the Philippines,Footnote ²⁷ and the British-Jordanian Treaty of 1948 providing for the stationing of British troops on Jordanian territory.Footnote ²⁸

The Sino-Soviet boundary treaties signed between Imperial China and Tsarist Russia in the late nineteenth century were not questioned by the PRC until the Sino-Soviet rift of the 1960s. Then, however, the PRC frequently charged that the treaties of Aigun (1858), Peking (1860), and Ili (1881) were unequal and should be abolished.Footnote ²⁹ The PRC was also extraordinarily tolerant of postwar treaties under which the Soviet Union acquired a large portion of territory from Eastern European countries, and actively supported the Warsaw Treaty (1955)—at least until her relations with the USSR began to deteriorate in the 1960s.Footnote ³⁰ Thus, by the time of the military occupation of Czechoslovakia by the Soviet Union in 1968, the PRC was ready to join other nations in denouncing as illegal the Soviet-Czech Agreement of 16 October 1968 because it was signed under duress.Footnote ³¹

With the birth of the United Nations (UN) in 1945 and the idea that smaller and newly independent states could share formal equality with more powerful nations, the existence of inequality in treaty relationships was taken more seriously as a concern in international law. By the 1950s and 1960s, a growing number of scholars from communist countries and newly independent states were expressing the view that “[u]nequal treaties are not legally binding”.Footnote ³² Thus, for example, a 1961 Soviet international law textbook states:

Similar expressions of this idea can be found in the writings of other leading socialist scholars, including the Hungarian jurist Herczech,Footnote ³⁴ the Polish writer Bierzanek,Footnote ³⁵ the Pakistani lawyer Varghese,Footnote ³⁶ Russian commentators Tunkin,Footnote ³⁷ Vassilenko,Footnote ³⁸ and Talalayev,Footnote ³⁹ and the Chinese theorist Wang Yao-tien.Footnote ⁴⁰ The writings of these scholars informed much of the discourse after World War II surrounding decolonization and calls for the manifest injustices of colonial rule to be redressed.Footnote ⁴¹

As early as 1965, members of the drafting committee for the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United NationsFootnote ⁴² urged that that the good faith obligation expressed in Article 1 of the Declaration should relate only to treaties freely entered into, and not to unequal treaties. During a 1966 meeting of the special drafting committee, an amendment was proposed to achieve this. The nine-state amendment provided: “Every State shall fulfil, in good faith, its obligations ensuing from international treaties, concluded freely and on the basis of equality.”Footnote ⁴³

This amendment, which would seem to “have introduced equality as a criterion in determining the validity of a treaty” was, however, rejected, as was a similar amendment proposed by (then) Czechoslovakia.Footnote ⁴⁴ An attempt was also made during negotiations leading up to the Vienna Convention on the Law of TreatiesFootnote ⁴⁵ to have inserted a provision invalidating treaties entered into as a result of political and/or economic force. The attempt almost succeeded, but supporters of the provision were finally obliged to settle for a compromise, which annexed the provision to the end of the Convention in the form of a “Declaration”.Footnote ⁴⁶ Within the UN especially, there was, thus, always a political undertone to the discussion of unequal treaties, overshadowed as it was by the history of European domination of Asian states (notably China), and in the 1970s, this was dominated by the discussions of socialist jurists from the Soviet Union and China.Footnote ⁴⁷

Yet, senior Western diplomats and scholars have also played an important role in the debate. On one side have been those who share the views expressed by US Ambassador Sol Linowitz when, in 1977–78, he expressed sympathy for Panama's argument that the 1903 US-Panama treaty governing control over the Panama Canal had been entered into under duress and was unfair, and, therefore, not binding under international law.Footnote ⁴⁸ On the other side are scholars like Stuart Malawer, who firmly reject the idea that any so-called “doctrine” of unequal treaties “first enunciated by the Soviet Union shortly after the Russian Revolution” had any credence or validity at all in international law.Footnote ⁴⁹

C. An Emerging Concern with Substantive Equality in Treaty Relations

By 2005, Matthew Craven argued that:

This paper argues, however, that concerns about equality in treaty relations have not so much evaporated from the domain of international law as changed their shape within that domain. Over the past few decades, the world community has attempted to reach agreement over how to tackle global problems such as climate change. In the course of negotiations aimed at reaching agreement on how to tackle such problems, the world community has been forced to recognize the need for a more equitable sharing of burdens and benefits. In the context of climate change treaty talks, for example, Darrel Moellendorf has explored the way in which a concern for equality has manifested itself in the idea of “equal” burden-sharing in achieving global reductions in greenhouse gas emissions.Footnote ⁵¹ Simply put, the idea of “equal burdens” holds that states should aim to undertake a similar level of effort to others at a similar level of development and with similar national circumstances. In other words, a climate change treaty should equalize the burdens of emissions reductions as felt by states, rather than attempting to equalize the actual amount or percentage of reductions across states.Footnote ⁵² There is, thus, a concern not with formal or reciprocal equality in treaty obligations, but with ensuring equality in treaty outcomes.

Yet, as Moellendorf shows, despite its attractiveness, the concept of “equal burdens” contains significant moral and pragmatic problems. First, if the background of existing levels of emissions is one of injustice—that is, if developed states have consistently failed in their duty to reduce CO₂ emissions over the past few decades—then existing levels of CO₂ emissions cannot be considered a fair baseline from which to calculate burden-sharing. Moreover, if some states have profited from polluting activities in the past at the expense of poorer states, it is not unreasonable to require those states to bear an unequally greater burden in sharing the task of climate change mitigation. Calculating the costs of measures to mitigate climate change is also problematic. For example, if market values are used to calculate the opportunity costs incurred in climate change mitigation, an “equal burdens” formula can weigh the loss in the production of luxury goods to the rich equally or more heavily than the loss in the production of essential goods to the poor. What climate change negotiations require is a complex balancing of considerations of justice, equity, equality, pragmatism, and stability, which no single concept can hope to embrace.

Others have also highlighted the difficulties inherent in attempting to define notions of equality in international relations generally, and in treaty relations in particular. As Matthew Craven has pointed out:

For pragmatic reasons, therefore, the international law community has, thus, recognized the futility of seeking to distinguish between tolerable and intolerable forms of inequality, or to determine the precise point at which inequalities in power and influence would be such as to invalidate an agreement.Footnote ⁵⁴

Others have argued, in contrast, that the complexities inherent in defining the idea of equality should not, and has not, prevented the world community from being concerned with equality in treaty relations. In arguing that international law needs to take the desirability of equality in treaty relations seriously, Philippe Cullet invokes the idea of substantive equalityFootnote ⁵⁵—a concept developed by antidiscrimination advocates and law-makers in response to Aristotle's notion of treating like cases alike.Footnote ⁵⁶

D. Formal Equality and Substantive Equality

The idea of formal equality can be traced back to Aristotle and his dictum that equality means “things that are alike should be treated alike”.Footnote ⁵⁷ This is the most common understanding of equality today. Formal equality promotes individual justice and is reliant upon the proposition that fairness requires consistent or equal treatment.Footnote ⁵⁸ Substantive equality is a far more complex notion of equality, and one which embraces concepts of equality of opportunity and equality of outcomes. It is partly based on a redistributive justice model, which suggests that measures have to be taken to rectify past discrimination and/or disadvantages. Unlike formal equality, where behaviour is dictated by the application of rules, procedures, rights, and obligations on a strictly equal basis, the concept of substantive equality opens the door for concepts of both utility (maximizing the total gains arising from a treaty scheme) and morality (redressing past disadvantages) to enter into the drafting of treaty relations. Substantive equality recognizes the shallow nature of formal equality and strict reciprocity, and injects a substantive element into the framework of treaty equality. It can be criticized on the basis that it is amorphous in nature and far too open to politically controversial interpretations.Footnote ⁵⁹

As both Cullet and Amartya Sen have noted, “[t]he demands of substantive equality can be particularly exacting and complex when there is a good deal of antecedent inequality to counter”.Footnote ⁶⁰ Cullet, nonetheless, argues that the modern task for international law is to go beyond formally equal treaty rules, and to devise exceptions to formal equality “which take into account some existing inequalities so as to bring about substantively equal results”.Footnote ⁶¹ The rationale, according to Cullet, is not to create permanent exceptions, but to permit a temporary legal inequality in order to wipe out an inequality in fact. This idea of carefully crafted differential (special) treatment for the particular purpose of achieving substantive equality in a treaty relationship is further explored in Part II below.

A. The Continuing Problem of Inequality in International Relations: A Legal Problem or a Political One?

By the end of the twentieth century, a number of commentators had begun to ask whether new forms of unequal treaties and imperialism were emerging at the same time as debates over “unequal treaties” were disappearing from international law discourse.Footnote ⁶² For Matthew Craven, the problem is one of “international lawyers’ unwillingness to engage effectively with the problem of inequality”.Footnote ⁶³ His argument, essentially, is that international lawyers have come to consider the problems of inequality, which were discussed so vigorously during the era of decolonization, as problems of sovereignty and territorial title which simply do not exist in an era of formal equality as enshrined in the United Nations Charter. This, according to Craven, is to ignore the way in which various forms of “imperialism” persist in the cultural, social, political, and ideological spheres, as well as through an “imperial policy of free trade”.Footnote ⁶⁴

Treaties, once signed and ratified, are, thus, presumed to be based upon the equality and free consent of state parties. The terms of the treaty or the fact that it may serve to perpetuate or generate inequalities between states cannot be used as the basis for denouncing or renegotiating a treaty. Rather, the only thing that can displace the presumption of equality and free consent in a treaty relationship is evidence of coercion in the creation of the treaty. Thus, Article 52 of the Vienna Convention makes clear that a “treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations”.Footnote ⁶⁵ State parties to the Vienna Convention also agreed to the Declaration on the Prohibition of Military, Political, or Economic Coercion in the Conclusion of Treaties and Relation Resolution,Footnote ⁶⁶ which was annexed to the Convention. The Declaration is significant in at least two ways. First, its status as a non-binding declaration, rather than as an integral part of the Vienna Convention itself, evidences the reluctance of states to draw a formal distinction between acceptable and unacceptable forms of coercion or pressure in international relations. Second, the fact of the Declaration and its successful annexure to the Vienna Convention, nonetheless illustrates the desire of states to minimize as far as possible the use of coercive tactics in treaty negotiations.

Apart from the Declaration is the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970), which declares that:

Again, the status of these two instruments falls short of establishing a binding prohibition on the use of coercive behaviour in treaty relations. Nor has either instrument ever obtained the level of support necessary to provide evidence of a widespread belief (opinio juris) amongst states that the principles espoused therein are binding principles of customary law.

Shirley Scott agrees with Craven that the continuing problem of inequality in international relations has been relegated to the political sphere, and no longer appears as a concern in legal discourse.Footnote ⁶⁸ Scott presents a picture of a world where less powerful states, forced to negotiate agreements in the context of presumed equality, have extracted various political undertakings from more powerful states in return for accepting blatantly unequal treaty terms. The United Nations Charter is one such treaty, according to Scott, bestowing, as it does, a privileged position upon the five permanent Security Council members.Footnote ⁶⁹ Scott also examines four other “cornerstone treaties” of modern global governance—the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the United Nations Convention on the Law of the Sea (LOSC), the General Agreement on Tariffs and Trade and Marrakesh Agreement establishing the World Trade Organization (GATT/WTO), and the United Nations Framework Convention on Climate Change (UNFCCC)—all of which could be regarded as unequal treaties. She concludes that in each case:

Scott's argument is that the consent of less powerful states to treaties such as these can best be understood as having been conditional, premised on the most powerful states living up to their side of a bargain of which the treaty was a part. Such bargains have arguably been necessary in the interests of global order and as a trade-off for making the underlying treaty acceptable in practice. It also remains true, however, that even with bargains made in their favour, the most powerful states have been quite willing to default on their own part of the bargain,Footnote ⁷¹ even while using the language of international law enforcement against the less powerful states.

It might be argued that Scott fails to adequately distinguish between legally binding (ratified) formal treaty obligations on the one hand, and the moral/political obligations of states which have not ratified any treaty undertakings on the other. However, she is in good company when she argues that key treaty regimes, such as the WTO regime of treaties, have and continue to operate in a way which benefits the already well off at the expense of the less powerful.Footnote ⁷² Like those who have examined international law from feminist, Third-World, and other alternative perspectives, Scott, David Kinley,Footnote ⁷³ Gerry Simpson,Footnote ⁷⁴ and other writers have performed the essential task of exploring and exposing the political realities behind one of the accepted legal fictions of international law—”sovereign equality”.Footnote ⁷⁵

B. Differential Treatment in International Law

Despite the value of their analysis, neither Scott nor Craven has put forward any framework for tackling the various challenges of inequality in treaty relations they have illustrated. As noted above, one author who does grapple with this task is Philippe Cullet.Footnote ⁷⁶ Cullet uses the notion of differential treatment to describe “instances where the principle of sovereign equality is sidelined to accommodate extraneous facts, such as divergences in levels of economic development or unequal capacities to tackle a given problem”.Footnote ⁷⁷ While the concept has strong affinities with the concept of preferential treatment, as found, for example, in the Lomé Convention,Footnote ⁷⁸ it is predicated on a different conceptual basis, which emphasizes solidarity, partnership, and substantive equality over formal equality. Preferential treatment can imply a one-way granting of favours from one country or group of countries (usually the wealthier ones) to another country or group of countries (usually those which are less endowed). Or, it can imply non-reciprocal arrangements, which serve to increase disparities and inequalities, such as, for example, those currently existing in the set-up of the UN Security Council or the International Monetary Fund.Footnote ⁷⁹ Differential treatment, on the other hand, implies a sharing of costs and benefits for the benefit of all, but with costs and benefits shared according to an alternative criterion than strict reciprocity.

A given non-reciprocal mechanism may be seen as differential or otherwise depending on the context. Granting different groups of countries different implementation periods in the case of environmental agreements, such as the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, is one example of a technique aimed at favouring those states for which compliance with the instrument is relatively more cumbersome.Footnote ⁸⁰ A more obvious example is found in treaties such as the Kyoto Protocol, which provide different commitments for different categories of Member States.Footnote ⁸¹ Where commitments are shared in common, but the ability of state parties to meet obligations is not shared, differentiation at the implementation level can be used to achieve substantive equality. This includes, for example, technology transfers or aid mechanisms targeted at fostering the implementation of the treaty by less endowed states.Footnote ⁸²

Differential treatment is most commonly designed to benefit one or more group(s) of countries—typically developing or least-developed countries. While these categorizations have the advantage of highlighting the existence of significant disparities between states, they tend to be reductionist. There are often many more differences between states included within the same category (e.g. the developing country group) as there are between the members of that category and other states. One way of meeting the need to allow for individual differences between states is to agree not on a set of defined commitments, but on a set of basic principles, within which each state can work out its own set of undertakings (as in the case of the APEC Non-Binding Investment Principles,Footnote ⁸³ for example). Another way is to agree on a formula for calculating levels of commitment that takes into account relevant factors (such as population density or gross domestic product) that are unique in every state. This kind of approach is already used, for example, by the United Nations in seeking contributions from Member States according to a scale of assessment, under which each state is classified mainly according to its capacity to pay.Footnote ⁸⁴

According to Cullet:

In other words, differential treatment in treaty relations, whether in the terms of the treaty itself or in its execution, should be the preferred approach whenever it is necessary to achieve substantive equality and/or to facilitate genuine co-operation and good-faith implementation of treaty aims and purposes.

As Philippe Cullet also notes, Article 19 of the 1969 Vienna Convention on the Law of Treaties already recognizes that states may enter reservations when signing up to a multilateral treaty, unless a particular reservation is expressly prohibited by the treaty or is incompatible with the object and purpose of the relevant treaty. The fact that treaty law has long provided for a form of differential treatment, even prior to 1969, indicates that differentiation has long been accepted by the international community.Footnote ⁸⁶ The use of reservations, therefore, especially the use of temporary reservations, has potential as a tool for ensuring greater equality in the process of treaty implementation. Countries can feel free to ratify a treaty on the basis that a reservation accepted by other parties to the treaty allows them to defer compliance with certain treaty terms during the period of capacity-building.

The drafters of the UN Charter were obviously concerned to enshrine the principle of the sovereign equality of states in the founding instrument of the UN organization.Footnote ⁸⁷ However, what seems to have been forgotten in the years since 1945 is that this concern was just as much a concern for substantive equality as it was for formal equality. Thus, for example, both Mexico and Brazil were concerned that treaties which may appear to be formally equal could “become unjust”. As a result of this concern, Mexico suggested at one stage in the drafting of the UN Charter “that the General Assembly be empowered to discuss and make recommendations concerning ‘treaties proving inapplicable … having become unjust’”.Footnote ⁸⁸ Brazil also put forward a proposal suggesting that the UN Charter should contain a clause whereby:

The proposed clause was based on Article 19 of the League of Nations Charter, which provided that:

In the years since World War II, a growing body of international legal instruments has emerged which has provided a foundation upon which principles supporting substantive equality in treaty relations, including, where necessary, through the application of differential treatment, can be built. These instruments provide guidance on the rationale for granting differential treatment or for preferring a differential treatment approach in treaty interpretation. Amongst the most striking examples of such instruments are the various General Assembly resolutions, which emerged in the 1970s associated with the New International Economic Order (NIEO) of that decade. The 1974 Declaration on the Establishment of a New International Economic Order, for example, expressly calls upon the world community to recognize the principles of “[p]referential and non-reciprocal treatment for developing countries, wherever feasible, in all fields of international economic co-operation whenever possible”.Footnote ⁹¹ The 1974 Declaration also calls for “[t]he strengthening, through individual and collective actions, of mutual economic, trade, financial and technical cooperation among the developing countries, mainly on a preferential basis”.Footnote ⁹² The NIEO sought to put into place projects such as the 1976 Integrated Programme for Commodities and its companion, the Common Fund for Commodities established in 1980.Footnote ⁹³

Other similar instruments include the Industrial Development Co-operation Agreement adopted by the UN Industrial Development Organization in 1980, which:

The 1994 International Tropical Timber Agreement provides another example of differential treatment, but one under which states are not differentiated according to their level of economic development. Instead, votes for producer countries are allocated partly according to their respective shares of the world's total tropical forest resources.Footnote ⁹⁵

In the area of environmental law more generally, it is certainly arguable that the principle of common but differentiated responsibilities is a well-recognized principle of international relations.Footnote ⁹⁶ The idea that developed and developing countries have different roles to play in the amelioration of environmental problems was formalized in Principle 7 of the 1992 Rio Declaration on Environment and Development. Principle 7 recognizes that “[i]n view of the different contributions to global environmental degradation, States have common but differentiated responsibilities”.Footnote ⁹⁷

Principle 7 then continues:

The principle of common but differentiated responsibilities was incorporated into the UN Framework Convention on Climate Change.Footnote ⁹⁹ This treaty, which seeks the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”,Footnote ¹⁰⁰ states in Article 3(1) that the State Parties will 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 the lead in combating climate change and the adverse effects thereof.”Footnote ¹⁰¹

International trade conventions also provide many examples of instances where the ideals of differential treatment have been expressly agreed upon. In this context, the inherent inequalities which exist in the multilateral trading system, and the special needs and development concerns of the developing countries, figured, for the first time, in the Havana Charter.Footnote ¹⁰² Over the ensuing years of the negotiation rounds by parties to the General Agreement on Tariffs and Trade 1947,Footnote ¹⁰³ a number of special and differential treatment provisions were gradually built into the structure of international trade regulation. These include:

• • the modification of Article XVIII of GATT in 1954−55 to include Article XVIII-B which allowed developing countries to use quantitative restrictions for balance of payments purposes;Footnote ¹⁰⁴

• • the establishment of the United Nations Conference on Trade and Development (UNCTAD) in 1964Footnote ¹⁰⁵ and the creation of the Committee on Trade and Development in the GATT;Footnote ¹⁰⁶ and

• • the addition of Part IV on Trade and Development in the GATT in 1965. Part IV expressly recognizes both the link between trade and development and (in Article XXXVI) the fact that “there is a wide gap between standards of living in less-developed countries”. Article XXXVI then goes on to provide, inter-alia, that:

While Article XXXVI may appear to be an example of non-reciprocal, preferential treatment in trade relations, it needs to be seen in the broader context of the need to bring less-developed nations into a system of trading relationships, which has operated largely to the overall benefit of developed nations. This need was expressly recognized during the adoption of the Enabling Clause in 1979 at the end of the Tokyo Round, which saw political recognition by developed countries that special and differential treatment is an essential part of attracting and retaining developing countries within the system.Footnote ¹⁰⁸

The Agreement on the Global System of Trade Preferences among Developing Countries also expressly recognizes the principle that least developed countries are not required to make concessions on a reciprocal basis.Footnote ¹⁰⁹ Again, while strict reciprocity is not expected, the system is based on a series of concessions made by all sides, and, therefore, cannot be seen as preferential in a one-way sense.

Similarly, the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) refers, in Article 66, to “the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base”, and allows such Member States additional time to implement the provisions of the TRIPS Agreement.Footnote ¹¹⁰ The needs of least developing and least developed WTO members are also recognized in Article 67, which provides for developed countries to provide various forms of technical assistance to their less fortunate counterparts.Footnote ¹¹¹ The TRIPS Agreement has, however, operated primarily to protect the interests of technology exporting developed nations such as the US, and has imposed significant costs on less developed nations.

As Shirley Scott and othersFootnote ¹¹² have pointed out, however, the hopes of developing countries by the development of these provisions have consistently been dashed by the realities of the GATT/WTO system as it has operated over the years. It took many more years than it should have, for example, for developed countries to agree to practical steps aimed at facilitating access to their markets for agricultural goods from developing countries. While the Uruguay Round of negotiations gave rise to the 1994 Agreement on Agriculture,Footnote ¹¹³ in practice, the agricultural sector remained highly distorted after the Agreement. Added to this have been the costly new obligations developing countries have taken on in areas such as services and intellectual property.

It remains the case, however, that special and differential treatment for developing nations in international trade has come into direct conflict with the prevailing WTO orthodoxy favouring formal equality on a number of occasions. In 1997, for example, the WTO Dispute Settlement Body ruled that the Lomé Conventions,Footnote ¹¹⁴ which provided preferential access to European Community (EC) markets for goods from African, Caribbean, and Pacific Island (ACP) states, was in violation of WTO rules requiring strict equality of treatment in market access for foreign goods. The Lomé Conventions allowed most ACP agricultural exports to enter the EC free of duties under a scheme that included preferential access, based on a quota system, for products in competition with EC agriculture.Footnote ¹¹⁵ Following a 1996 petition lodged by Ecuador, Guatemala, Honduras, Mexico, and the US asking the WTO to investigate whether the Lomé IV Convention had violated WTO rules, the WTO Appellate Dispute Settlement Body ruled in 1997 that the EC's banana import regime was in contravention of Articles I and XIII of GATT.Footnote ¹¹⁶ This conclusion was reached despite the fact that on 14 October 1996, a waiver was granted by the GATT Contracting Parties in order to permit the EC to provide preferential treatment for products originating in ACP states. When the Fourth Lomé Convention expired in February 2000, so did the WTO waiver authorizing the continuation of Lomé tariff preferences. A new waiver was secured to permit ACP bananas duty-free entry into the European Union (EU),Footnote ¹¹⁷ but this waiver also proved ineffective to prevent the WTO Appellate Body again finding in November 2008 that the EC banana import regime was in breach of WTO rules.Footnote ¹¹⁸

Yet, the importance of differential treatment in the smooth running of the international trading system is increasingly being recognized. In the lead-up to the Doha Ministerial Meeting of the WTO in November 2001, which was the first major round of multilateral trade negotiations following the Uruguay Round, a number of developing countries put forward a Proposal for a Framework Agreement on Special and Differential Treatment.Footnote ¹¹⁹ This proposal would have gone at least some way towards recognizing a general principle in favour of differential treatment applicable to all parts of the world trading system. The proposal, however, was never accepted by developed states. Instead, trade ministers agreed to include in the Doha Ministerial Declaration a reaffirmation of special and differential treatment for developing countries. It was also agreed that existing special and differential (S&D) treatment provisions “be reviewed with a view to strengthening them and making them more precise, effective and operational”.Footnote ¹²⁰ Trade ministers further endorsed the work programme on S&D treatment outlined in another Doha document, the Decision on Implementation-Related Issues and Concerns (Implementation Decision).Footnote ¹²¹ This document calls on the WTO Committee on Trade and Development to identify the S&D treatment provisions that are already mandatory and those that are non-binding, and to consider the implications of “converting [S&D] treatment measures into mandatory provisions, to identify those that Members consider should be made mandatory”, and “to examine additional ways in which S&D treatment provisions can be made more effective”, as well as to consider “ways … in which developing countries … may be assisted to make best use of [S&D] treatment provisions”.Footnote ¹²² The Committee on Trade and Development was asked to report to the General Council with clear recommendations on each of these questions by July 2002.Footnote ¹²³

Negotiations since 2001 have been split along developing/developed country lines. Developing countries have sought to negotiate on changes to S&D provisions, keep proposals together in the Committee on Trade and Development, and set shorter deadlines. Developed countries, in contrast, have sought to study S&D provisions, send some proposals to negotiating groups, and leave deadlines open. Developing countries claimed that the developed countries were not negotiating in good faith, while developed countries argued that the developing countries were unreasonable in their proposals. At the December 2005 Hong Kong Ministerial Conference, six months before the Doha Round negotiations stalled in mid 2006, members agreed to five S&D provisions for developing nations, including provisions for tariff-free and quota-free access to developed markets for a variety of non-agricultural goods from developing states.Footnote ¹²⁴

The principle of differentiated treatment has influenced the development of law and policy at both national and international levels. Not only has it been incorporated into numerous international instruments, the significance of differentiated treatment in international law is increasingly being recognized in state practice, as the international community confronts a growing number of issues of global concern. In the area of international environmental law, for example, the principle of common but differentiated responsibility has attracted broad acceptance by the international community.Footnote ¹²⁵ It may well be that the pressure on the world community to make use of the principle of special and differential treatment will continue to increase as the need to combat harmful climate change becomes increasingly urgent.

Judicial decisions, both domestic and international, have also recognized the usefulness of the concept of substantive equality and other principles of equality. In particular, both domestic and international legal decisions provide examples of judges utilizing the rules of equity to “mitigate the rigours of strict law”.Footnote ¹²⁶ It is now widely recognized that the “principles of equity are a part of general international law, and play an increasingly influential role in the analysis of contemporary legal problems”.Footnote ¹²⁷ It has also been recognized that there is no division between law and equity in international jurisprudence.Footnote ¹²⁸ Examples of cases where international courts and tribunals have invoked maxims of equity include:

• • the Diversion of Water from the River Meuse case,Footnote ¹²⁹ where Judge Hudson considered that Anglo-American maxims of equity, such as “equality is equity” and “he who seeks equity must do equity”, could be applied as “general principles of law recognized by civilized nations” under Article 38(1)(c) of the Statute of the International Court of Justice (ICJ);

• • the North Sea Continental Shelf cases, in which Judge Ammoun adopted a comparative approach, noting the way in which general principles of equity were incorporated into all of “the great legal systems of the modern world”;Footnote ¹³⁰

• • the Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen, in which Judge Weeramantry included extensive scholarship on the role of equity and the development of environmental law in his Separate Opinion;Footnote ¹³¹ and

• • the Gabčíkova-Nagymaros Project case, in which Judge Weeramantry distilled evolving jurisprudence and traced the concern for the environment through all legal cultures.Footnote ¹³²