HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Sunday, May 22, 2022

Differential Treatment in International Law & Global Risks from Pandemics and Climate Change

Bradly J. Condon (ITAM), Differential Treatment in International Law & Global Risks from Pandemics and Climate Change, SSRN (2022):

This paper will analyze differential treatment of developing countries in international law. Differential treatment for developing countries is a core concept for addressing inequalities between developed and developing countries in a broad range of international agreements. Differential treatment often involves calls for developed countries to provide financial support to developing countries to help them overcome capacity constraints regarding trade, climate change, and global pandemics. It also involves adapting global rules to local contexts, in order to take into account the economic, technological, and institutional constraints that developing countries face. A lack of financial and institutional capacity in developing countries hampers their ability to address global risks from pandemics and climate change, which in turn increases these risks for developed countries. Sustainable globalization requires bridging the disparities between developed and developing countries in their capacities to address matters of global concern. However, it also requires taking into account, in the case of climate change, historical responsibility for emissions and ecological capacity to absorb emissions and to adapt to the effects of the changing climate.

This paper will focus on three areas of international law: climate law, trade law, and health law. International climate law uses the concept of “common but differentiated responsibilities” with respect to developing countries, based on differential historical responsibility for greenhouse gas emissions and differential institutional and financial capacity to address climate change. WTO law uses a concept of “special and differential treatment” for developing countries, based on differential capacity to engage in and to benefit from the multilateral trade system, for example regarding access to essential medicines. International health law encourages developed countries to provide financial and other support for developing countries to build, strengthen and maintain their public health capacities. There is relatively little comparative literature on this concept and significant debates over how to make differential treatment rules more effective. This paper will argue that a more coherent framework of differential treatment is essential to enhance the capacities of all countries to address the increasing risks from global pandemics and climate change, while taking into account the cognitive and cultural diversity that influences the multilateral formulation and local application of global norms.

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