The End of Differential Treatment for Developing Countries? Lessons from the Trade and Climate Change Regimes

• DOI: http://doi.org/10.1111/reel.12017
• Date: 01 April 2013
• Published date: 01 April 2013

The End of Differential Treatment for Developing

Countries? Lessons from the Trade and Climate

Change Regimes

Joost Pauwelyn

Dividing the world in two groups of countries – devel-

oped and developing – remains deeply engrained. This

bifurcation is increasingly problematic. It has led to

deadlock in negotiations and equity concerns. This

article traces parallel developments of differential

treatment in the trade and environmental regimes. It

demonstrates that in both regimes a radical shift is in

the making, away from differential treatment for

developing countries as a group, and toward individu-

alized differentiation between countries based on

objective, issue-specific criteria. The question is less

whether China or Russia are developing countries. The

challenge is to find criteria to differentiate between

countries – both developed and developing – tailored

to each negotiation or regime. Half a century after the

start of decolonization, this may be the end of differ-

ential treatment for developing countries. Yet, ironi-

cally, it leads to more (not less) differentiation and,

though not without risks, can make regimes more

effective and equitable.

INTRODUCTION

More than twenty years after the fall of the Soviet

Union, the notion of the ‘Third World’ continues to hold

currency.1Even more so, the contradistinction between

‘developed’ and ‘developing’ countries – which origi-

nates in the decolonization era, a process which started

after the Second World War and (for the most part)

ended more than thirty years ago – remains very much

alive. To this date, whether a country gets classified as

‘developed’ or ‘developing’ has major consequences for

development assistance, trade preferences, climate

change commitments and a host of other obligations

and privileges under domestic legislation and interna-

tional treaties.

Under the United Nations Charter, and as a basic prin-

ciple of international law, all States are equal.2In prac-

tice, huge differences between countries have always

existed and will continue to exist, be it in terms of land

mass, population, gross domestic product (GDP), GDP

per capita, military capacity, natural resources, indus-

trial production, private or public wealth, environmen-

tal conditions, history, culture, etc. Unless a treaty

explicitly provides for differential treatment, these

inter-country differences are papered over, and all State

parties must be treated alike. Trade and environmental

agreements, especially, include so-called ‘differential

treatment’ for the group of developing as opposed to

developed countries.3The question arises, however,

whether the old bifurcation of the world’s countries in

these two groups continues to make sense,4especially at

a time where at least certain ‘developing countries’ have

made major progress (think of the Republic of Korea or

Singapore and, more recently, Mexico, Brazil or China)

and large parts of the ‘developed’ world are going

through the worst economic crisis since the Second

World War, and will be burdened with debt for decades

to come.

In today’s context, this bifurcation is neither effective –

as elaborated below, it has deadlocked both trade and

1The ‘Third World’ is referred to as opposed to what were once the

‘f‌irst, capitalist world’ and the ‘second, communist world’. The Econo-

mist, ‘Rethinking the “Third World” ’, The Economist (10 June 2010).

2Charter of the United Nations (26 June 1945; in force 24 October

1945), Article 2.1 (the principle of sovereign equality).

3When referring to ‘differential treatment’ for developing countries, I

mean a norm which ‘by its terms provides different, presumably more

favorable, treatment to developing countries’. D.B. Magraw, ‘Legal

Treatment of Developing Countries: Differential, Contextual and

Absolute Norms’, 1:1 Colorado Journal of International Environmental

Law and Policy (1989), 69, at 98. Magraw usefully distinguishes

‘differential treatment’ from ‘contextual treatment’ – that is, a ‘norm,

without specif‌ically mentioning developing countries, [which] requires

or allows consideration of characteristics that typically vary according

to the economic developmental situation in a country’. Ibid. See text

below at note 72.

4As Robert Benchley famously put it: ‘There are two kinds of people

in the world, those who believe there are two kinds of people in the

world and those who don’t.’ See <http://www.quotationspage.com/

quote/488.html>. See also P. Cullet, Common but Differential

Responsibilities, in: M. Fitzmaurice, D.M. Ong and P. Merkouris

(eds.), Research Handbook on International Environmental Law

(Edward Elgar, 2010), 161, at 175–176: ‘[I]t is necessary not only to

rethink existing categories [of developing and developed countries]

but also to reconsider the very need for banding countries together in

loose groupings . . . the category that we know as “developing coun-

tries” has long outlived its relevance.’

bs_bs_banner

Review of European Community & International Environmental Law

RECIEL 22 (1) 2013. ISSN 0962-8797

© 2013 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

29