Differential treatment in international law: towards a new paradigm of inter-state relations

Abstract

International law has traditionally been based on the principle of sovereign equality of states. As a consequence, treaties have normally provided for similar obligations for all states. In recent decades, the expansion of the international community and the globalization of environmental and economic issues have led to the search for new legal tools to take into account existing disparities and inequalities among states and to foster a better implementation of international agreements. Differential treatment, which refers to instances where the principle of sovereign equality is sidelined to accommodate extraneous factors, such as divergences in levels of economic development or unequal capacities to tackle a given problem, constitutes one possible avenue to make international law more responsive to these new challenges and to foster substantive equality among states. This article first examines the conceptual issues underlying the development of differentiation among states. It further surveys the development of differential treatment and examines its current status in international law, especially with regard to recent developments in international environmental law.

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