1. INTRODUCTION
Differential treatment between various groups of countries constitutes one of the bases of existing international environmental law (IEL). In most cases, it is the distinction between developed and developing countries which has structured treaties. This differentiation is firmly anchored in the structure of IEL, which cannot be understood without reference to the various measures taken to reflect the situation of developing and least developed countries (LDCs).
There is a direct link between differentiation and equity. In fact, differential treatment constitutes one of the most visible – and hence also controversial – instruments to foster equity in IEL.Footnote 1 It builds on ideas of global distributive justice and helps to rebalance some of the most visible inequalities arising between formally equal states of very different size, power or natural resource endowment.
There have been multiple restatements of the principle of common but differentiated responsibilities (CBDRs, or the CBDR principle) in recent years, including at the United Nations (UN) summit for the adoption of the post-2015 development agenda.Footnote 2 This confirms the central position of differentiation and the intrinsic link between a form of equity and existing IEL. This is not surprising in a context where 29 years after the publication of the Brundtland Commission report,Footnote 3 states have tackled neither inequality nor poverty. Differentiation is and will remain necessary for the majority of countries of the South for decades to come and for the billions of people whose human rights, including environment-related rights, are not fully realized.
This article starts with a restatement of the conceptual bases for differential treatment. This restatement confirms the significance of the proposed break with the traditional international legal framework and explains the continuing opposition to differential treatment by some countries. Section 3 moves on to analyze the varied ways in which differentiation has been introduced in IEL and shows that differential treatment has become a basic element that pervades the whole field. While debates tend to focus specifically on the presence or absence of CBDRs, this section shows that the reality is far more complex and that differentiation arises in many forms and places. The fourth section addresses some critiques of differentiation. It argues that differentiation remains as necessary as it was two decades ago because of continuing inequalities between the North and the South. It also responds to the criticism that a simple North-South division fails to provide a way in which large economies and polluters can be differentiated from small LDCs, and argues that differentiation should be based primarily on environmental and social factors. Further, it asserts that differential treatment does not undermine environmental outcomes but rather is a necessary pre-condition for stronger environmental outcomes at the global level. The fifth section contemplates novel elements that need to be considered to strengthen differential treatment in the future and to better reflect the evolution and complexity of an increasingly global world. It argues that differentiation needs to leave behind the conceptual framework that makes us look at global environmental problems through the lens of the nation state in favour of a framework based on common heritage equity. A broader framework is also necessary so that differential treatment is applied to all connected fields in the wider realm of sustainable development. This is a necessary pre-condition to ensure that all fields of sustainable development are covered by the same principles. Further, differential treatment needs to be implemented in such a way that it benefits the most disadvantaged in every country.
2. BASES FOR DIFFERENTIATION: EQUITY AND PRAGMATISM
Differentiation is a relatively novel phenomenon in international law. Its development is directly linked to the rapid increase in the number of states following decolonization, which fundamentally changed the nature of the ‘international community’.Footnote 4 Indeed, countries newly recognized as states often shared a common past of colonial exploitation and a relatively similar socio-economic profile, very different from that of other countries that had been recognized as states for much longer.
The development of differentiation can be considered from two different perspectives. Firstly, differential treatment is based on a recognition that deep inequalities must be addressed to ensure the legitimacy of the international legal order. Equity is at the root of measures that seek to foster substantive equality in a world structured around formal equality.Footnote 5 Secondly, differentiation is the product of the convergence of various interests in international negotiations that offer a basis for diverging from the usual reciprocity of obligations. In IEL, differential treatment reflects equity considerations, as well as the necessity for the North to offer suitable conditions to countries of the South to entice them to join environmental regimes on issues of global importance.Footnote 6
Structurally, differential treatment constitutes a recognition of the limits of a system based on a fiction of legal equality between states which imposes reciprocity of commitments by all state parties to any treaty.Footnote 7 It is not the first type of measure taken to address the problems that may be caused by the strict application of the principle of reciprocity. Indeed, it has been recognized for decades that judges should have the flexibility to apply strictly reciprocal rules in ways that go beyond the mechanical application of a rule to ensure a just and fair result.Footnote 8 This flexibility provides a tool for the judge to ensure that the decision given in a particular case is not perceived as illegitimate.Footnote 9 This form of equity is well accepted and the International Court of Justice (ICJ) has ruled that ‘[e]quity as a legal concept is a direct emanation of the idea of justice’.Footnote 10 In certain cases, such as maritime delimitation, the ICJ has taken into account geographical factors in its reasoning, although it has refused to consider socio-economic factors, such as levels of economic development, as these are deemed not to be permanent features.Footnote 11
The main shortcoming of judicial equity is its inability to take into account structural inequalities in the medium or long term, such as inequalities in levels of human or economic development. Indeed, a solution limited to individual cases does not provide a sufficient basis for the legal system to offer just outcomes if the result of the application of norms is mostly unfair. This requires rethinking the structure of the rules and moving away from the idea of strict reciprocity.Footnote 12 This is what differential treatment at the level of norms can achieve. The differentiation that is at stake here is one which ensures a reduction in inequality, prevents an increase in inequality and, more generally, leads to results that are more just than those without differentiation.
Differential treatment seeks to foster substantive equality where formal equality does not lead to satisfactory results. Different conceptions of justice can provide a justification for differential treatment in IEL. The first is corrective justice, which leads to a focus on the differential historical contributions of states to environmental degradation. The most debated case in this context is climate change as a direct correlation exists between greenhouse gas (GHG) emissions over the past couple of centuries and present levels of per capita economic development.Footnote 13 This need not be restricted to climate change and could include exploitation of environmental and natural resources during the colonial period. Yet, while differential treatment has strong roots in corrective justice, the North has not agreed to an understanding of the principle of CBDRs that includes a historical dimension.Footnote 14
The second conception of justice at the root of differentiation is distributive justice. This focuses on the need to address existing inequalities in human development. In a context where the legal framework equates justice with formal equality, distributive justice reminds us that it is not sufficient to provide for equality of chances but that what matters is equality of results.Footnote 15 Consequently, like cases should be treated alike and dissimilarly situated people should be treated dissimilarly.Footnote 16 In the Aristotelian formulation, dissimilar situations need to be addressed in ways that take into account existing differences.Footnote 17 This perspective has been accepted for decades in international law, as was confirmed by the admonition of ICJ Justice Tanaka that ‘[t]o treat unequal matters differently according to their inequality is not only permitted but required’.Footnote 18 At the international level, in view of prevailing substantial inequalities, it is imperative to take measures to address such inequalities. Yet, measures such as economic redistribution of resources have remained contentious in the North, which has shied away from recognizing any entitlement linked to justice claims for such redistribution.Footnote 19 Indeed, even Rawls, whose theory of justice gave a more humane touch to liberal philosophy,Footnote 20 finds that once the duty of assistance is satisfied at the international level, and all people have working liberal or decent governments, ‘there is again no reason to narrow the gap between the average wealth of different peoples’.Footnote 21 Stone argues in a similar manner when he opines in the context of an environmental discussion that:
even if we suppose that the present worldwide distribution of wealth is so unsupportable that some Rich to Poor redistributions are in order, it is an additional leap to defend redistributions within the matrix of a particular framework, such as a multilateral environmental agreement. Why should redistribution be sought through exempting the Poor from efficient environmental and resource standards – giving them a ‘right to pollute’ – rather than through a more straightforward step-up in aid and development assistance?Footnote 22
The points made by Rawls and Stone do not address the need for the international legal framework to remain legitimate, and to be so in the eyes of the majority of the world’s countries and people. Asserting that inequalities need no further attention once a framework of formal legal equality has been established is an inappropriate way to address the world’s reality. Success should be measured by the way in which desired environmental and social outcomes are reached.Footnote 23 In this context, differential treatment gives international law a basis to reach fair outcomes in the context of the deep inequalities among states. This must be expressed, first of all, through measures of intragenerational equity, since the primary duty of the legal framework is to foster decent and improving conditions of life for the present generation. At the same time, since any environmental measure adopted has a temporal angle, the needs of future generations must also be taken into account through measures of intergenerational equity.Footnote 24
3. DIFFERENTIAL TREATMENT: AN INDISPENSABLE STRUCTURING ELEMENT OF INTERNATIONAL ENVIRONMENTAL LAW
Differential treatment developed rapidly in IEL. This is largely because the different agendas of the South and North at the international level needed to find common ground on a variety of international environmental issues. The South articulated the same kind of equity claims that had already been made relatively unsuccessfully in international economic law.Footnote 25 The North found itself in the position of seeking measures to address global problems, such as the hole in the ozone layer or climate change, that were not (yet) crucial environmental problems for the South when negotiations started. The middle ground between the divergent and sometimes opposed positions was paved through the development of the various forms of differential treatment that exist today in IEL.
Differential treatment is the instrument that takes forward the perceived need to foster equity in the legal framework not only at the level of the application of existing norms but in the establishment of norms themselves. In IEL, various forms of differentiation have developed over time. As a result, it has become so widespread as to be an intrinsic part of IEL. We first find differential treatment in some of the basic instruments of IEL and the principles they lay down. The 1972 Stockholm Declaration already recognized the importance of intergenerational equity, linked ‘under-development’ with the necessity to provide financial and technical aid, and called on the North to ensure that environmental technologies be made available to developing countries on terms which would encourage their wide dissemination without constituting an economic burden on the South.Footnote 26 Twenty years later, references to differentiation had become far more specific. The 1992 Rio Declaration linked the realization of the right to development with meeting equitably the needs of present and future generations, recognized the necessity to give special priority to LDCs and the most environmentally vulnerable countries, and put forward in its Principle 7 the necessity for a partnership to address global environmental damage based on the principle that ‘states have common but differentiated responsibilities’.Footnote 27
Differential treatment is thus well enshrined in the foundational instruments of IEL. There is, however, no specific reference to a necessity to differentiate at the level of legal commitments in the basic principles of IEL. Principle 7 of the Rio Declaration recognized differences between the North and the South – such as in terms of contributions to environmental degradation – but it did not go as far as imposing legal obligations on the North. Indeed, the United States (US) specifically indicated that it did not believe Principle 7 could be interpreted as creating any obligation on or liability for the North.Footnote 28 Commentators often take a similar line and argue against the existence of binding commitments of differentiation to be borne by the North.Footnote 29
Principle 7 is significant because it constitutes one of the specific battlegrounds on which differentiation is debated. It is specifically integrated in some treaties, such as the 1992 United Nations Framework Convention on Climate Change (UNFCCC),Footnote 30 and has been affirmed in various legal instruments over the past two decades. This includes restatements in preambles, including in that of the 2001 Stockholm Convention on Persistent Organic Pollutants (Stockholm POPs Convention)Footnote 31 and the 2013 Minamata Convention on Mercury,Footnote 32 as well as in programmatic instruments, such as the UN’s 2030 Agenda for Sustainable Development.Footnote 33 In some instances, the CBDR principle has been used to guide judicial reasoning, as was the case in the Shrimp Turtle dispute at the World Trade Organization (WTO).Footnote 34 The visibility of CBDRs has sometimes led to the idea that differentiation could more or less be equated with Principle 7. Yet, while CBDRs can be understood in multiple ways, there exists a variety of measures that seek to foster substantive equality without necessarily being linked to CBDRs. Differential treatment thus needs to be read as including more than what is usually discussed under the guise of CBDRs.
A variety of differential measures have been introduced in IEL. At the level of treaty norms, the most usual form of differentiation is contextualization. A reciprocal obligation is qualified by a clause, such as ‘in accordance with its particular conditions and capabilities’, which recognizes that member states are not all capable of taking exactly the same measures, for instance, to conserve and sustainably use biodiversity.Footnote 35 Contextualization has become frequently used, but is disliked by some commentators who see in such clauses the germs of a weakening of the binding character of legal norms.Footnote 36
Differentiation can also be enshrined in the obligations themselves, such as where states take on different commitments. The example that is most often cited of this kind of differentiation is the 1997 Kyoto Protocol to the UNFCCC,Footnote 37 which imposes GHG emissions reduction commitments only on the North. The prominence of climate change generally, and in the context of debates on differentiation specifically, masks the fact that comparable measures have been adopted in other treaty regimes. Thus, the 1994 Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD)Footnote 38 includes among its principles a call to ‘take into full consideration the special needs and circumstances of affected developing country Parties, particularly the least developed among them’.Footnote 39 At the level of commitments, differentiation is implemented in such a way that some commitments are borne only by the North.Footnote 40 The UNCCD goes further and gives special priority to the African continent.Footnote 41 This has lost none of its salience in a context where the African continent still counts 34 of the 48 LDCs and still deserves particular attention in terms of differentiation. The reason why differentiation in the UNCCD has attracted much less attention than it has in the Kyoto Protocol is partly because it is a framework convention which contains relatively general commitments. It has also proved more difficult for the South to extract strong differential language in the UNCCD because the North sees desertification as more regional in scope than the Rio Conventions (the UNFCCC and the Convention on Biological Diversity (CBD)Footnote 42 ) and as a secondary priority.Footnote 43
A series of other differentiation techniques have been gradually introduced in IEL. Several treaties offer a group of countries the possibility of delaying compliance with obligations that are strictly similar for all states.Footnote 44 One of the first major treaties to do this was the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol),Footnote 45 which offered developing countries with a sufficiently low level of consumption of the controlled substances a 10-year grace period in which to apply the measures required by the treaty.Footnote 46
Differentiation has been introduced in other contexts, such as non-compliance procedures.Footnote 47 For example, the Kyoto Protocol tasks the facilitative branch of its Compliance Committee with promoting compliance while taking into account the principle of CBDRs and respective capabilities (CBDR-RC).Footnote 48 In the yet to be adopted non-compliance procedure under the Stockholm POPs Convention, consequences may be different for the South and the North.Footnote 49
In practice, one of the most visible forms of differentiation is implementation aid.Footnote 50 Most treaties adopted since the early 1990s include provisions concerning implementation aid and technology transfer.Footnote 51 This is linked to the progressive recognition that treaty accession by an increasing number of countries does not necessarily translate into effective implementation. It also constitutes an example of resource redistribution.Footnote 52 Many states do not have the necessary financial, technological or administrative capacity to effectively implement the commitments they take on at the international level. The recognition that an aid component should be added to environmental treaties is a response to this reality. The central role of access to funds and technology to implement most environmental treaties fosters the adoption of innovative provisions that recognize, for instance, that countries of the South cannot effectively implement their commitments unless countries of the North effectively fulfil their pledges concerning the transfer of financial resources and technology.Footnote 53 While implementation aid has been provided on a relatively sustained basis in various treaty regimes, the same cannot be said with regard to technology transfer, which was one of the unfulfilled promises of the New International Economic OrderFootnote 54 and remains an area of concern, as confirmed by recent debates in the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) on technology transfer related to climate change.Footnote 55
On the whole, differential treatment has played a central role in structuring IEL for several decades. It may take new forms over time but must remain a central feature of international environmental regulation.Footnote 56 It is demanded by the broader principle of solidarity among states, which requires states to take measures to address inequalities, including through differentiation.Footnote 57 This is what states did at the UN summit for the adoption of the post-2015 development agenda, which calls for a global partnership for sustainable development ‘based on a spirit of strengthened global solidarity’.Footnote 58 It is within this context that differentiation constitutes an important tool to address the shortcomings of a system based on formal equality and to bring about substantive equality.
The importance and relevance of differential treatment needs to be restated in the context of today, which emphasizes the challenges to differentiation in the climate change regime and its weakening in the Paris Agreement by the UNFCCC 21st Conference of the Parties (COP) in December 2015.Footnote 59 Challenges notwithstanding, the broader lesson of the Paris Agreement is the confirmation that differentiation cannot be done away with, even if the Agreement introduces a distinct version of the principle.Footnote 60 Moreover, the climate change regime remains only one of many important environmental regimes and the sectoral nature of IEL ensures that any single treaty does not signal a trend in itself.Footnote 61 The central role of differentiation has in fact been clearly reiterated in recent years with every important environmental legal instrument, including new treaties such as the Minamata ConventionFootnote 62 and major UN summits, such as the 2012 Rio+20 summitFootnote 63 or the 2015 Sustainable Development Goals’ summit,Footnote 64 which specifically restates the central importance of the CBDR principle.Footnote 65
4. THE NEED FOR DIFFERENTIAL TREATMENT TO ADDRESS INEQUALITIES AND FOSTER ENVIRONMENTAL QUALITY
Differential treatment has been subjected to various forms of criticism, ranging from opposition to the very idea of differentiation in international law to criticism of the specific manner in which differential treatment has developed in IEL. This section addresses some recurrent critiques. Firstly, it engages with the recurrent criticism that differentiation may be appropriate but should be available only up to the point at which inequalities are sufficiently reduced. This may be theoretically sound but, in reality, with structurally undiminished inequality and rampant poverty, more rather than less differentiation is necessary. Secondly, differential treatment is increasingly criticized because the current framework based on a simple North-South division fails to provide a way to distinguish large economies and polluters from small LDCs, often with particular reference to China as the largest emitter of GHGs in the climate change context. In response, this article suggests that beneficiaries should be identified primarily on the basis of environmental and social indicators that are linked more directly with the subject matter of the relevant treaties. Thirdly, this section addresses the criticism that differential treatment dilutes the environmental content of international treaties. It argues, on the contrary, that differential treatment is so inseparable from the environmental outcomes that the former is in fact a necessary condition for positive environmental outcomes.
4.1. The Need for Further Differentiation in an Unequal World
Differential treatment is sometimes perceived as an acceptable temporary compromise to redress certain inequalities. At the same time, the argument runs that it should be limited in time and lead to a return to a legal order based on legal equality and reciprocal obligations.Footnote 66 Such views have been given a new lease on life since the beginning of the century in a context where a few large countries in the South have been the engine of world growth. This has led to calls to restrict or abolish differential treatment based on the argument that countries such as China are now sufficiently resilient not to require any favours and must bear the burden of their fast increasing contribution to environmental degradation.Footnote 67 The changes identified are real and the world has indeed changed significantly since the early 1990s. At the same time, the perception of change is driven largely by the focus on the economic growth of BRICS countries (Brazil, Russia, India, China, and South Africa) at a time of sluggish growth in the North.Footnote 68
This tends to make us forget that there has been no significant structural change over the past few decades. Indeed, the situation of the majority of countries of the South, in particular the LDCs, is comparatively no better than it was at the beginning of the 1990s. A longer term comparison confirms this point: the share of global gross domestic product (GDP) of the South was 30% in 1974; it is 32% today, according to World Bank estimates.Footnote 69 Thankfully, there has been a faster progression of the Human Development Index (HDI) in countries at the bottom of the scale. Yet, at the same time, while countries with low human development saw their HDI increase from 0.315 in 1980 to 0.505 in 2014, countries with very high human development also saw their HDI increase significantly from 0.773 to 0.896 during the same period.Footnote 70
Thus, there is neither a reason to celebrate the progression in the South over the past few decades nor a reason to be preoccupied by a situation where inequalities between the North and the South would be so reduced as to make differential treatment redundant. The idea that differentiation must be dynamically interpreted is a valid proposition,Footnote 71 but it presupposes a context in which structural inequalities are showing signs of significantly decreasing.
Since inequalities in levels of human development have not diminished significantly, the moral imperative for differential treatment remains as strong as it was two decades ago. The need to ‘combat inequalities’ is in fact one of the specific commitments taken by the UN Summit for the Adoption of the Post-2015 Development Agenda.Footnote 72 The need for further differentiation has also been confirmed recently by the WTO, an institution set up in 1995 on the premise of the need to dispense with differentiation and treat all states on the basis of formal equality.Footnote 73 In the context of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) AgreementFootnote 74 staggered implementation had been agreed originally. Developed countries were required to implement their commitments by 1 January 1996, developing countries by 1 January 2000, and LDCs were given an extension until 1 January 2006.Footnote 75 The deadline for LDCs was then extended to 2013, and then again to 2021.Footnote 76 This now amounts to a 25-year extension of the original 1996 implementation deadline for developed countries and indirectly confirms the increasingly shared understanding that LDCs have very little, if anything, to gain from the TRIPS Agreement.Footnote 77
Overall, the limited improvements over the past two decades in terms of inequality in human development between the North and South in general, and small developing countries and LDCs in particular, confirms that differentiation is needed more than ever. It is often countered in response that, if this is true, it cannot hold for all countries of the South in the same way. Other responses argue that inequalities may be present but that differential treatment is not the answer because it undermines environmental outcomes in the name of benefiting the South. The next two sub-sections address these criticisms.
4.2. Towards Selective Differentiation Based on Environmental and Social Criteria
One criticism levelled at differential treatment in recent years refers to its monolithic view of beneficiaries, whereas the situation of some large countries of the South has changed significantly over the past couple of decades. This is in essence the debate that surrounded the Kyoto Protocol and the growing demand for some countries of the South to take on some kind of commitment under the climate change regime in view of their contribution to environmental degradation and their increasing resilience. The critique can be used in support of a proposal to abolish differentiation or to introduce new grounds on which to base differential measures. This article argues instead that differentiation is needed and responds to the critique by looking at alternative criteria for differentiation which can provide a better model for the future.
The present framework for differentiation is built around an existing distinction between ‘developed’ and ‘developing’ countries, which itself coincides in large part with formerly colonizing and colonized countries. In the context of international economic law in which early debates on preferential treatment took place, this division on the basis of economic criteria was an appropriate starting point.Footnote 78 In the environmental sphere, there were also good reasons to start with this same division: ‘developed’ and ‘developing’ were known categories and in some cases a good correlation existed between levels of economic development and contribution to environmental damage. This was, for instance, the case for the generation of hazardous waste and contribution to GHG emissions.
At the same time, the simplistic division of the world into North and South was reductionist and became the target of criticism. There has been relatively limited movement towards refining the categorization of states in environmental agreements even though the need has been acknowledged.Footnote 79 The Paris Agreement is the first to decisively break with the North-South dichotomy by providing for ‘nationally determined contributions’ (NDCs) that each country intends to achieve.Footnote 80 Yet, this instrument does not constitute a model for the future in that it constitutes a victory only in the face of the no-agreement option that could have put an end to any hope for an effective form of international cooperation on climate change.Footnote 81
From a differential treatment perspective, the Paris Agreement seems to break new ground by proposing a form of individual differentiation. Yet, the way in which this was introduced is self-defeating as it is led by the individual self-interest of states rather than by international ambition. The problem is not with individual differentiation the need for which has been recognized for years,Footnote 82 but with self-differentiation. Indeed, there is a basic difference between differentiation based on individual preferences and the self-interest of countries and individual differentiation arising as a result of an internationally agreed framework. While IEL is yet to move towards negotiated individual differentiation, this is not unknown per se at the international level, as is reflected in the case of the UN budget to which member states contribute on the basis of individual assessment by the institution of their ability to pay, rather than on the basis of self-assessment.Footnote 83
The failure of recent agreements to move beyond a North-South dichotomy or, as in the case of the Paris Agreement, to provide a future model for differential treatment necessitates new thinking about criteria which could become the basis for differentiation and which would avoid the pitfalls of the current approach. In IEL, categorization according to a measure of economic development needs to make way for environmental and social criteria that should be linked much more directly with the subject matter of the treaties being negotiated. While it has been suggested that differentiation should be based on objective mathematical criteria,Footnote 84 factors such as poverty, impoverishment or environmental degradation cannot necessarily be determined through numbers.
In the future, differential treatment should be based on a social and environmental assessment which identifies the vulnerability of states and their resilience to environmental problems. This will have several advantages. Firstly, it will help in bringing back the environmental agenda to the centre of environmental treaties. In the context of climate change, for instance, this is a real concern as debates tend to centre around economic development strategies. The focus has been mostly on the extent to which countries should be allowed to pollute the atmosphere. This is not completely unexpected in a context where the central issue of CBDR-RC has been framed around a division of the world according to economic development criteria. Yet, the environmental issue of climate change requires the world to think about the climate from an environmental perspective and on the basis of environmental principles. Thus, a climate change legal instrument ideally should propose, on the basis of the precautionary principle, differentiated obligations to take precautionary measures to mitigate and adapt to climate change. This would have the advantage of building obligations around the necessity for each country to reduce its impact on the global environment rather than the present system based on rights to pollute, which indirectly legitimize the higher emissions of more polluting countries.
Secondly, social and environmental indicators will provide a more effective basis for differentiating between countries. For instance, China and Malawi have little in common in terms of their respective responsibilities for global environmental harm, their resilience to harm, and their capacity to address the consequences of environmental harm. Their different status is highlighted by the fact that China is now one of the main donor countries to LDCs in Africa.Footnote 85 While China and Malawi are leagues apart in terms of levels of human development, Fiji happens to have the same rank as China in terms of its HDI ranking.Footnote 86 Yet, as a small-island state, Fiji’s contribution and needs in the face of climate change and sea-level rise cannot be compared with China’s situation.
On the whole, several factors bear out the need for change in the way in which beneficiaries of differentiation are identified. Change is first needed to ensure that the lack of distinction within the broad North-South categories does not become a wedge to abolish differentiation altogether. It is also needed to bring differentiation in IEL closer to its subject matter. The categorization along economic development lines was a useful proxy and a politically convenient tool to advance the development of differential treatment measures. A few decades later, it is time to move towards using environmental and social indicators that mirror the substance of the treaties negotiated in the broader context of sustainable development which informs IEL today.
4.3. Differentiation as a Necessary Basis for Successful Environmental Measures
Some view differential treatment as a double-edged instrument which may generate positive outcomes for the South at the expense of the environment. Two different critiques can be highlighted. It has been suggested that differential treatment does not necessarily provide the basis for agreements that are favourable to sustainable development.Footnote 87 Here, the very presence of differentiation is seen as the root cause of the dilution of environmental measures. From another perspective, it has been suggested that within the context of a given treaty, the extent of differential treatment should preferably ‘be limited in the service of the object and purpose of the treaty’.Footnote 88
Differentiation is thus portrayed as a factor that limits the potential ideal environmental outcome or that needs to be constrained to ensure it does not affect the environmental objectives of a treaty. However, differentiation must be appreciated in the more positive light in which it first arose. Differentiation, or equity, is an intrinsic part of sustainable development, as reflected, for instance, in its inclusion in the Rio Declaration.Footnote 89 There cannot be sustainable development at the international level without differentiation; this has been confirmed in international environmental treaties over the past few decades.
An (environmentally) successful treaty is thus one in which environmental obligations have a differential basis. Differentiation cannot have negative impacts on the environmental content of a treaty to the extent that it is at the root of the consensus position that is arrived at in the final negotiated text of the instrument. Indeed, none of the main international treaties adopted since the 1980s would have been widely ratified if it were not for their differential component. The first example is probably the Montreal Protocol,Footnote 90 a treaty that the South would not have joined if it had not taken into account the necessity to differentiate between the North and the South.Footnote 91 Differential treatment needs to be seen against the baseline of the absence of agreement rather than against the ideal treaty that would do all that could be expected in environmental terms. The latter is, in any case, an impossibility when the framework of reference is sustainable development rather than simply environmental conservation. IEL is intrinsically about compromises between various worthy objectives – equity and environmental conservation being two of them.
Differentiation has also been criticized for introducing double standards of environmental protection. The absence of reciprocity is considered to potentially weaken the juridical nature of the norms adopted.Footnote 92 Economists see in these double standards an incentive for multinational companies to target countries with the weakest environmental regulation, with negative consequences for the South. Matsui thus concludes that ‘[a] consequence of this might be an environmental disaster such as the Bhopal incident that occurred in India in 1984’.Footnote 93 This is an important remark for this discussion. On the one hand, it has been established that Union Carbide’s security measures were not the same as those in its similar plants in Institute (West Virginia (US)) and in Bhopal;Footnote 94 this indeed matches the profile of a multinational company searching for investment opportunities which are less burdensome in human and environmental terms. On the other hand, the Bhopal disaster preceded the introduction of differential treatment and non-reciprocity in IEL and was therefore in no way caused by differentiation. Rather, this disaster contributed to the strengthening of environmental law in India,Footnote 95 and constituted a reference point in international negotiations for years, confirming that countries of the South face special problems that necessitate differential measures.
Conversely, differential treatment should not be seen as putting an additional burden on countries of the South to take environmental protection measures that they would not take otherwise. Generally, the South does not lag behind the North in terms of adopting environmental laws. More specifically, fast decreasing environmental quality in countries of the South acts as a strong incentive to take measures that may ‘cost’ in economic terms but contribute to sustainability, including environmental quality and human health. This is the case, for instance, with regard to catastrophic air pollution in various cities in the South, which acts as a strong incentive for regulatory measures, regardless of international climate change initiatives.Footnote 96 There is thus no opposition between differentiation and environmental protection. Again, this is not surprising since the framework of reference is the notion of sustainable development, rather than simply environmental conservation.
5. RETHINKING ENVIRONMENTAL DIFFERENTIATION IN A GLOBALIZED WORLD
Differential treatment has been successfully implemented over the past two decades to the extent that North-South equity measures now constitute an essential component of IEL. This is not to say that the global environment fares much better than it did a few decades ago; in fact, the world faces an increasingly long list of worsening environmental problems.
This calls for new thinking on differential treatment, something that can be done from two different perspectives. Some see the weakening of differentiation in the Paris Agreement as a positive sign that the climate change regime has moved ahead of the ‘bipolar, rigid and static type of differentiation’ in the Kyoto Protocol.Footnote 97 However, this article argues that differentiation needs to be rethought to reflect a world in which inequalities have not substantially reduced but environmental harm has significantly increased.
This section argues firstly that the nature of the problems at stake should be at the centre of regulatory measures rather than national self-interest. In a context where many environmental problems are global in scope, the principle of common heritage provides an appropriate alternative to rethink differentiation. Moreover, the scope of differential treatment should be broadened beyond the relatively narrow field of the environment to cover all issues related to sustainable development. Finally, it is argued that differentiation must consider the place and role of non-state actors to ensure that international measures do not disadvantage the poorest in a given country.
5.1. Rethinking the Basis for Differentiation: Common Heritage Equity
Differential treatment is based on a territorial understanding of the world which has no relationship with the nature of the problems addressed. While thinking beyond sovereign entities may sound utopian in a world still defined largely by nation states, there are good reasons why the environmental sphere should be one of the first where such new thinking is introduced. Environmental problems typically do not recognize state boundaries. Further, the global environmental problems that have been at the centre of the development of differential treatment are quintessentially unsuited to a territorial division perspective.
Conceptually, there is a need to move beyond the idea of ownership of environmental resources by individual states to an understanding that certain resources are in the custody of the whole of humankind.Footnote 98 Once these resources are defined as ‘common heritage’,Footnote 99 they become something that cannot be owned by anyone, that must be managed jointly and the benefits of which are also enjoyed jointly. This provides an avenue to look at their regulation in a new light which transcends national self-interest.
Centuries of sovereign assertion over natural resources have ensured that the very notion of common ownership of the earth’s resources remains controversial because it challenges the basic principles of the established legal framework.Footnote 100 Yet, international law witnessed the introduction of the concept of common heritage of humankind several decades ago.Footnote 101 Debates at the time of its introduction centred on an equity rationale, which mirrors the discussion above concerning existing measures of differential treatment.Footnote 102 The starting point was the status of resources which had not yet been claimed in ownership, such as deep seabed minerals. This provided the basis for discussing ways in which these resources should be managed by all states together, regardless of their actual technological or financial capacity to exploit them.
The existing regime for the conservation and use of resources of the AreaFootnote 103 in the UN Convention on the Law of the Sea (UNCLOS) constitutes a model that can be built on. It involves a form of global redistribution of resources in the form of common heritage equity that is similar in intent to differential treatment. Under common heritage equity, exploitation of the resources concerned is not governed by the ‘first come, first served’ rule that has been the basis of appropriation of territory and resources for centuries, but rather by a recognition of broader values which endorse a form of joint management and sharing of the benefits.Footnote 104 While the UNCLOS regime is oriented more towards equitable resource allocation than conservation, there is no a priori reason why the latter cannot be as strong as the former. This can be seen in the context of Antarctica where the freeze on sovereign claims has not stopped states from adopting a strong environmental protection regime which turns Antarctica into a natural reserve, devoted to peace and science.Footnote 105
The principle of common heritage is an appropriate basis to address global environmental issues from a redistributive perspective. This may be a radical change in a context where states still negotiate overwhelmingly on the basis of their national self-interest. Yet, the urgency of finding a new basis for addressing global problems is highlighted by developments in the climate change regime. Indeed, the move away from internationally negotiated differentiation in the context of the environmental issue most easily identified as being global is a move in the wrong direction. Individual differentiation based on narrow national interests does not point the way towards new forms of international cooperation that will ensure that climate change is comprehensively and effectively addressed. Rather, it confirms that we are reaching a roadblock and must find new ways to address crucial international environmental problems.
Starting points could be made with resources that are already under some form of joint management, such as Antarctic water resources.Footnote 106 Other resources will need different starting points. The regulation of freshwater, for example, could start from the premise that the governed resource is water found in the atmosphere, which happens to be the source of most of the water humankind uses on a daily basis through precipitation, rather than surface water or groundwater located in the territory of a specific state. The water neither belongs to any state nor is it subject to appropriation. This alternative perspective constitutes a good basis for new forms of regulation based on common heritage.Footnote 107 There is no reason why climate change could not be addressed similarly in terms of the common responsibility that all states must work towards mitigating anthropogenic global warming rather than the current model which is based, in effect, on rights to pollute.
5.2. Expanding Differential Treatment to All Sustainable Development-related Agreements
Differential treatment developed in the context of the adoption of various treaties in what was a fast-growing new branch of international law, IEL. The approach seemed promising for environmental issues and, more generally, appeared to point towards a new way of reconciling the different aspirations of the North and the South within the relatively rigid framework of international law based on legal equality and reciprocity of obligations. The promise was in part linked with the perception that environmental negotiations were much less acrimonious than negotiations on economic matters in earlier decades.Footnote 108
In the past two decades, differentiation has not only become an intrinsic part of IEL but has also progressively become a part of soft law instruments in the field of sustainable development, as was last confirmed in the 2030 Agenda for Sustainable Development.Footnote 109 In this sense, an understanding of the need to take a broader view of the environment seems to have developed. The language of sustainable development has progressively become the context within which the environment is considered. A long process of change, kick-started with the Brundtland Commission report,Footnote 110 led to the mainstreaming of sustainable development as the new framework guiding overall UN development policy until 2030 through the adoption of the Sustainable Development Goals (SDGs).
The mainstreaming of overlapping understandings of environmental and developmental policy surprisingly has not led to a rethinking of the structure of legal obligations in the variety of areas that make up the field of sustainable development beyond what is understood to fall under an environmental heading. This needs to change, as illustrated by the fact that some areas of international law that predate the development of environmental law, such as water law, have been largely immune to developments in environmental law. Interestingly, while water has been considered as part of environmental law since its inception, the reverse has not happened. Water law has made little progress in integrating environmental principles and, as a result, there is little space for differential treatment in existing international water law instruments.Footnote 111 Yet, differentiation is as imperative here as it is in environmental law.
This is illustrated, for instance, in the case of groundwater. The draft International Law Commission (ILC) articles on groundwater assert as a basic principle state sovereignty over aquifers.Footnote 112 Not only does this go completely against the idea of considering water as a common heritage, but it is also a step back from the principles governing transboundary watercourses, in which elements of cooperation are recognized.Footnote 113 The assertion of sovereignty is an inappropriate starting point for joint conservation and use of aquifers and for the introduction of differential treatment measures within this framework. Yet, differentiation cannot be completely ignored in attempts to regulate resources such as water. This is highlighted by the fact that, notwithstanding assertions of sovereignty, the draft articles recognize the need to take into account the special situation of developing countries and include a specific provision on technical cooperation with them.Footnote 114
The limited recognition of the special situation of the South in the draft articles on groundwater confirms that there is a gap which needs to be addressed more systematically. Water law is one of the major areas of sustainable development where further action on this point is crucial. More broadly, differentiation must be integrated in all related areas of sustainable development. This includes key and controversial issues such as land, agriculture and mining governance.
Land may be the resource most clearly associated with the territory over which states claim sovereign control. Yet, states have already managed to agree on forms of cooperation over land degradation (and desertification). General cooperation on land issues will take time, but the link between land and many important environmental issues will eventually compel broader thinking and recognition of the shared nature of land on the planet.
Agriculture constitutes the single most important sector in terms of livelihoods in the South. It is also the only sector where the majority of states have managed to agree on a common heritage equity framework to govern access to seeds, even though seeds are physically clearly under sovereign control. The principle of common heritage of humankind was enshrined in the non-binding 1983 International Undertaking on Plant Genetic Resources.Footnote 115 There was, however, a rapid evolution in the 1980s which led to the CBD being based on the principle that states have sovereign rights over all their biological resources.Footnote 116 The 2001 International Treaty on Plant Genetic Resources for Food and AgricultureFootnote 117 is, like the CBD, premised on the principle that states have sovereign rights over seeds. At the same time, it attempts to retain elements of the free movement of seeds, put in place earlier through a mechanism to foster exchanges in recognition of the vital importance of cooperation to ensure food security in a context where all states depend in part on germplasm from other countries for their main food crops.Footnote 118
Mining is another interesting case study. Under the guise of tightly controlled national legal frameworks, an increasing web of international legal instruments influences the sector, affecting areas such as climate change-related policies, land-related regulations and human rights policies relating to, for instance, mine workers or people displaced by mines.
These examples highlight the interdependence between the various sectors that make up sustainable development and the impossibility of effectively addressing environmental problems on a North-South basis by focusing on a limited number of issues. There is no doubt that the issues presented here – such as water, land, mining and agriculture – are among the most controversial because they touch on core functions of each state. Yet, in a globalized context where environmental issues know no boundaries and the economy of every state is closely integrated in the global economy, these sectors need to be addressed first. Each field raises major North-South questions that need to be addressed in a context of differential treatment.
5.3. Ensuring that Differentiation Benefits the Most Disadvantaged Individuals in Every Country
Differential treatment, until now, has failed to account for the diversity of people and situations that occur within states. It is important to ensure that international principles and rules, and especially environmental laws, consider the complexity within states, particularly enormous states like China and India.
It is time for differential treatment to be conceived in a broader way: one that may still use the nation state as the basic unit for regulatory measures, but that looks beyond to consider additional factors which may result in a state being assessed differently, depending on the issue considered. Thus, contributions to environmental degradation or environmental harm are not necessarily shared equally throughout a whole territory. Further, countries are themselves replete with inequalities between people and differentiation must ensure that its benefits mostly reach the most disadvantaged in a given country.
A major challenge that international law needs to address is to see through the veil of sovereignty, for instance, when allocating responsibility for environmental damage and its remediation. The question that arises is how to measure a country’s responsibility and capacity in relation to the situation of its least disadvantaged members. A country that is resilient in the aggregate may still need to benefit from differentiation if the majority of its population is vulnerable and likely to suffer disproportionately from environmental harm.
This situation is well illustrated in the case of India. In a worldwide comparison, India has experienced a period of fast economic growth since at least the beginning of the century. Significant economic reforms introduced in 1991 have had very positive outcomes for a minority of the population.Footnote 119 At the same time, growth has been unequal and the position of the vast majority of the population has not improved proportionally.Footnote 120 This is reflected in the HDI: whereas India was ranked 123rd out of 160 countries by the United Nations Development Programme (UNDP) in 1991, it is today 136th out of 187 countries.Footnote 121 These figures match the reality of a country that still has the second-highest estimated number of undernourished people in the world.Footnote 122
In terms of differential treatment, an equitable international law must ensure that measures taken reflect not only the resilience of the country as a whole but also of its inhabitants. Measures that would threaten the livelihood of the majority of poor people of a resilient country would be unacceptable. This makes international policy making slightly more complicated, but not impossible. Pressure points can be inserted so that differential measures primarily affect the richest in any country. This would, for instance, be the case for measures that increase the cost of flying, as they would fall disproportionately on the small minority of frequent fliers.
This example is relevant for climate change. Differential allocation of rights to pollute has been debated for decades. One of the proposals put on the table is to create a per capita entitlement. This would be differential since per capita emissions were and remain much lower in the South than is the case in the North.Footnote 123 While this proposal is instinctively attractive from a distributive justice perspective and provides a good starting point for a North-South conversation on allocation, it needs further reflection. On the one hand, political consensus around this formula is unlikely to emerge since it generally goes against the interests of the North as a whole. On the other hand, a simple per capita formulation is too simplistic and tends to favour larger countries rather than the most vulnerable and least resilient countries. Further, it does not take into account the vast inequalities in emissions within individual countries. A step forward in the debate, therefore, would be to consider actual individual emissions. In a context of vast intra-country inequalities, all countries have a minority of high emitters and a majority of low emitting residents. This could be used to build a more refined understanding of climate policy which takes into account, for instance, the existence of some low emitters in countries of the North and some high emitters in countries of the South.Footnote 124 In this context, frequent fliers could become the target of measures in virtually every country on the planet.
6. CONCLUSION
Differential treatment is an important instrument in fostering equity in international law. It has become one of the hallmarks of IEL and is found in most legal instruments in various forms. At the same time, opposition to certain forms of differentiation or to non-reciprocity itself has persisted. It has thus been argued that differentiation should be at best temporary, that it fails to target beneficiaries appropriately, and that it undermines environmental outcomes. Opposition has been particularly virulent in the climate change context where the non-reciprocity of the Kyoto Protocol was never fully accepted and eventually led to the introduction of much weaker individual differentiation in the Paris Agreement.
This article has argued that the critiques of differential treatment are helpful only to the extent that they assist in guiding states towards strengthening equity measures in place. In a context of continued inequality, more rather than less differentiation is needed. This differentiation must be structured around new environmental and social bases that better reflect the problems addressed. Further, differentiation must be understood as a pre-condition for any successful international environmental regime rather than as a potential obstacle.
Overall, differential treatment in environmental matters has made a significant contribution to the development of an alternative framework for North-South relations in international law. Yet, worsening environmental conditions and an evolving global context call for adding new elements to the existing framework for differentiation. This article has posited that the first stumbling block that needs to be addressed is the organization of differentiation around nation states in a context of environmental problems that are international or global in scope. Environmental problems must be addressed at the global level, which can be achieved if the environment is treated as a common heritage. The regulation of environmental problems at the global level provides the basis for equity measures that transcend the nation state, as already implemented in some limited contexts.
Further changes are needed in the way in which differentiation is applied. Differentiation must be applied not only in what is usually known as environmental law, but more broadly in all sectors of sustainable development. This will ensure that similar measures are taken in all related fields. In addition, the limited view of differentiation that stops with the nation state needs to be expanded to ensure that differential measures benefit not just a country in general but the most disadvantaged individuals as a matter of priority. This is particularly important since differentiation in favour of disadvantaged states does not necessarily lead to policies that favour disadvantaged individuals.
The various measures suggested here will help to strengthen the overall context within which differentiation is conceived and to address recurrent critiques. Both are necessary to foster a vibrant international environmental law which meets the equity needs of all states in years to come.
