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Wheen, N --- "Book Review: Differential Treatment in International Environmental Law (by Philippe Cullet, Ashgate Publishing Ltd, England, 2003)" [2005] OtaLawRw 9; (2005) 11 Otago Law Review 149

Book Review: Differential Treatment in International Environmental Law (by Philippe Cullet, Ashgate Publishing Ltd, England, 2003)

The differential treatment of states in international agreements is not necessarily a new idea, but it is an idea with increasing importance especially in the environmental arena. Differential treatment has arisen due to the need to reflect the more diverse membership of the international community following decolonisation and, in the environmental context particularly, the global nature of the problems being tackled. In practice, it favours developing or emerging countries, and it serves to induce them to enter into international agreements for environmental protection. At a theoretical level, it is ‘intrinsically linked to the search of substantive equity’ (p. 19) between states and other international players.

Cullet’s book is all about differential treatment. Although its title focuses on international environmental law, a good deal of the book looks more widely at the idea of differential treatment in international law as a whole. Cullet addresses the theoretical justification for and context of differential treatment, its development, and its impact on the international legal order in the first three chapters of the book. Chapter 3 includes Cullet’s description and evaluation of specific examples of the various forms of differential treatment in international environmental law, including those drawn from the conventions concerning climate change, ozone depletion, biological diversity, desertification, and the sea. This is a very useful account, and narrows the focus from international law and the international legal order generally, to environmental examples.

Chapter 4, which includes some of the most valuable material in the book, is entitled ‘Differential Treatment at the Implementation Level: Technology Transfer and Implementation Aid’. This chapter looks in detail at the technology transfer provisions in the ozone regime, financial mechanisms and implementation aid, and the so-called ‘flexibility mechanisms’ in the Kyoto provisions of the climate change regime. As Cullet notes, ‘… the basic thrust of differentiation at the implementation level is to foster the prompt and effective implementation of measures agreed upon by all parties’ (p. 95). It goes without saying that the measures may never have been agreed upon without the promise of differential treatment in implementation. This chapter is valuable because it is about an issue that really matters (implementation), and because it provides a reasonably detailed and informative analysis of differentiation in the ozone and climate change regimes, which are both major and recent initiatives. The climate change regime is especially innovative in its use of economic approaches and tools. Differential treatment forms a critical component of these tools and their implementation.

Chapter 5 takes one step further, moving along to the point of practice. It takes the example of plant variety protection through intellectual property rights, and describes and analyses how the differentiated obligations of developing countries under the international legal framework for the protection of plant varieties have been applied in India. Weaknesses in the Indian approach are then used to illustrate possible weaknesses in the legal framework, including its provisions for differential treatment.

Finally, chapter 6 rounds off the book by returning to some of the theory discussed in the first chapters, and by looking ahead to possible future developments in differential treatment.

I enjoyed reading the book, although I found it hard going in places. I found chapter 4 especially interesting, perhaps because it happens to focus on ozone depletion and climate change, two topics I know a little about and which I teach.

It is also very helpful to have at hand a good discussion of the theory behind differential treatment, and the main forms of differential treatment that feature in the international law of our time.

On this theory, I take a less kind starting point to Cullet when it comes to the relationship between differential treatment and the principle of sovereignty equality. In short, Cullet defines differential treatment as referring to ‘… instances where, because of pervasive differences or inequalities among states, 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’ (p. 15). Instead, I would say that differential treatment rests quite profoundly on a strong application of the principle of sovereign equality, rather than its sidelining or reformulation. Were it not for a strong adherence to the principle by all states, there would be little need for differential treatment to induce developing states to join up to international environmental agreements.

Far from sidelining the principle, differential treatment rests on a clear acknowledgment of the sovereign right of each and every state to make its own decision about signing up to treaties and incurring the environmental obligations that they contain. This difference in opinion is, however, entirely immaterial to the value of the book.

Finally, on a few occasions, I noted what I would describe as lapses in the sense of some sentences. In each instance, the lapse appears to have arisen as a result of editorial changes to the text. Two examples can be found on page 2 (where the affected sentence reads: ‘This analysis is undertaken partly with a view to elaborate on the foundations of differential treatment which have received little attention in the literature till date …’) and page 170 (where the relevant phrase reads: ‘… the impossibility to deal with these matters …’). Again, however, these hardly (if at all) detract from the value of the book as a whole.

Nicola Wheen, Faculty of Law, University of Otago.