Differential Treatment in Environmental Law: Addressing Critiques and Conceptualizing the Next Steps

Abstract

Differential treatment in international environmental law is the broader manifestation of the principle of common but differentiated responsibilities (CBDRs). It reflects equity concerns that have underlain most environmental debates on a North-South basis for several decades. Over the past two decades, various forms of differentiation have been introduced in environmental law instruments to the point where it has become an essential element of any international environmental agreement. At the same time, differential treatment has been the object of sustained criticism, arguing that it should be temporary, that it fails to target beneficiaries appropriately, and undermines environmental outcomes. This article takes the opposite view and argues that differentiation remains crucial in a world where widespread inequalities remain. Beneficiaries need to be identified on the basis of environmental and social indicators and differentiation should constitute the basis on which environmental measures are adopted. Worsening environmental conditions and an evolving global context call for adding new elements to the existing framework for differentiation. This requires thinking beyond the current structure centred around nation states and conceptualizing differentiation around common heritage equity. It also requires expanding differentiation beyond the field of environmental law, to include all areas of sustainable development law. Further, differential treatment needs to be implemented in a way that benefits the most disadvantaged in every country. These measures are necessary to foster a vibrant international environmental law which addresses the equity needs of all states in years to come.

Regulating the Global Antimicrobial Commons: Climate Agreements and Beyond

“… Differential treatment does not need to be structured around a simplistic division of the world in two categories of developing and developed countries [ 1 ]. This dichotomy served a purpose initially since it reflected the division of the world after political decolonization quite well but the core indicator used is economic development.…”

The costs of global protected-area expansion (Target 3 of the post-2020 Global Biodiversity Framework) may fall more heavily on lower-income countries

“…We have not attempted to define exactly what an equitable cost distribution would look like, because equity is not a scientific question but a legal and moral one (and in negotiations, ultimately a political one). Legally, states enjoy differential treatment under international law due to their different economic, social and historical situations 5 . Shared actions on global goals should follow a principle of equity 5 and for biodiversity specifically, Principles 6 and 7 of the 1992 Rio Declaration state that countries have differing circumstances and bear differing responsibility for global environmental problems (see e.g.…”

“…Legally, states enjoy differential treatment under international law due to their different economic, social and historical situations 5 . Shared actions on global goals should follow a principle of equity 5 and for biodiversity specifically, Principles 6 and 7 of the 1992 Rio Declaration state that countries have differing circumstances and bear differing responsibility for global environmental problems (see e.g. Sumaila et al 23 ), and so will need to make differing contributions to the solution 24 .…”

“…biodiversity aid 4 ) that they regard as excessive or poorly justified. A fair cost distribution is not only a moral issue, but also a pragmatic and political one: high-income countries may need to offer sufficiently attractive conditions to lower-income countries to secure the latter’s cooperation on global environmental issues 5 . This consideration is particularly relevant to the CBD and UNFCCC because lower-income countries harbour much of the earth’s remaining biodiversity and carbon-rich natural habitat 6 , making their political assent critical.…”

Addressing Climate Change through International Human Rights Law: From (Extra)Territoriality to Common Concern of Humankind

“…94 The factor of differentiation included in the definition of the principle represents the aim of both addressing and bridging the gap between the formal sovereign equality of statesthe point of departure in international law 95 and the de facto deep inequalities that exist among states following decolonization. 96 This forms the normative basis for the burden-sharing agreements (and differential treatment) in the older UNFCCC and its Kyoto Protocol. 97 The newer principle of CBDR-RC not only reflects pragmatism, but also stems from the basic principle of equity.…”