Equality among Unequals in International Environmental Law: Differential Treatment for Developing Countries

In this chapter, I will examine some multilateral environmental conventions with respect to the extent to which they provide incentives or differential treatment for developing countries. The incentives to be examined below include norms that differentiate among states with regard to core obligations, provisions that include technical and financial assistance, and joint implementation. The disincentives to be discussed are the use of trade sanctions directed at non-parties to the treaties and non-compliance provisions directed at reluctant parties. In addition, negotiation assistance will also be discussed, although it is not mentioned in the treaties. Finally, I will make an assessment of the different types of incentives.

As mentioned above, ¹ several environmental treaties distinguish between different categories of parties which have differentiated obligations. For the most part the dividing line goes between developed and developing countries. However, as in the case of the Climate Change Convention, some treaties differentiate between 1) industrialized countries (that is, OECD countries and countries undergoing the process of transition to a market economy); 2) only OECD countries; ² and 3) developing countries. In the case of the Climate Change Convention, the first two groups are classified as Annex I and Annex II parties, respectively. Annex I countries are urged to cut emissions, yet Annex II countries (OECD countries) are singled out as the parties that are to provide financial assistance for developing countries to enable them to implement their general obligations. ³

As discussed below, ⁴ the Kyoto Protocol introduced differential treatment among developed countries including countries with economies in transition. ⁵ This is an innovation in global environmental agreements, as opposed to regional agreements, some of which do include provisions with

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