1. Introduction
Since its modern inception in the 1960s, international environmental law (IEL) has faced three main challenges: (i) justifying the need for an international regulation of environmental issues (legitimacy); (ii) finding mechanisms to ensure compliance with IEL (effectiveness); and (iii) distributing equitably the benefits and burden of environmental protection (fairness). While it is nowadays possible to say that the need for an ‘international’ (as opposed to a merely domestic) regulation of some environmental problems is no longer in question, challenges (ii) and (iii) have never been more pressing.
This is particularly the case in the context of the redesign of the climate change regime (CCR), as the responses to (ii) and (iii) may conflict with each other. Industrialized countries who historically contributed the most to the artificial increase in greenhouse gases (GHG) in the atmosphere have been matched, and even surpassed, in their level of GHG emissions by countries such as China, India, or Brazil, who are now being pressed to undertake real emissions-reduction commitments. Historically, however, none of these latter benefited from the emission laxity characterizing the nineteenth century and most of the twentieth century to further their development. While imposing specific emissions-reduction commitments on them would seem unfair,Footnote 1 such commitments are nevertheless critical for the effectiveness of the regime both directly and indirectly (as without such commitments, industrialized countries may be reluctant to join or uphold a regime).
The importance of the ‘historical emissions argument’ should not be underestimated. Together with the ‘vulnerability argument’, namely the fact that the adverse impact of climate change will disproportionately be suffered by developing countries, the ‘historical emissions argument’ epitomizes the fairness imperative in the current renegotiation of the CCR. It would be very difficult indeed to argue that the ‘historical emissions argument’ (even more than the ‘vulnerability argument’) should not be taken into account in the redesign of the CCR. However, defining the specific role that considerations of fairness should play in this process is not only conceptually difficult, but also extremely controversial, to the extent that the effectiveness of the overall endeavour seems to depend upon the prior resolution of the fairness conundrum.
There are at least three reasons that support this latter assertion. First, without the participation of large emerging economies, the future CCR will likely not be effective. As reportedly noted by Todd Stern, the US climate negotiator in chief, bringing China into the system is the ‘alpha and omega’ of the international process towards the redesign of the CCR.Footnote 2 This is so because without the participation of China, the US Senate would be reluctant to ratify any potential emissions agreement. Second, allowing large emerging economies to continue with anything approaching their current emissions levels would in fact amount to ignoring the implications of the ‘historical-emissions argument’ for some of the less-developed countries, which are the most vulnerable to the potentially adverse effects of global warming. Emissions tolerance for large emerging economies could indeed lead to the exhaustion of any remaining emissions margin for other developing countries, contradicting the very reason why the former are granted emissions tolerance in the first place. Third, the very categories used to assess the fairness of the regime are not necessarily adapted (nor were they designed) to identify, let alone address, some issues of fairness. For instance, the distinction between Annex I countries and non-Annex I countries for purposes of allocating obligations under the current CCR is not sufficiently sensitive to variations in the level of emissions, human development, financial and technological capabilities, population, and other criteria potentially relevant for a fair distribution of the benefits/burden of addressing climate change. Underlying the preceding considerations is the profound complexity of any attempt at balancing conflicting considerations to provide a plausible compromise, a ‘fair’ solution weighing and integrating all relevant preferences.
The purpose of this article is not to say what would be a fair redesign of the CCR. Many ‘fair’ solutions are possible and the difference between them is often a matter of political choice. Rather, and more modestly, my goal is to spell out in an orderly analytical manner the types of issue that must be addressed in seeking a balanced solution. This type of analysis can be conducted from several perspectives. The most directly relevant disciplines to deal with fairness considerations are admittedly ethics and political philosophy, and there is indeed a growing literature on climate fairness.Footnote 3 Although this literature will be briefly surveyed, my focus will be on the fairness dimensions of the existing legal arrangements or those currently being negotiated. There is a considerable gap between the theoretical approaches to climate fairness and the manner in which considerations of fairness operate in practice. This gap is mainly due to the need to account for political considerations or, in other terms, to balance fairness with political effectiveness. When such considerations are taken into account, the picture that emerges is significantly different. The CCR is not built upon a single approach to fairness. Rather, fairness considerations are integrated through a patchwork of criteria used to distribute different objects (burden of emissions reductions, emission rights, contribution to financial and technological assistance, and access to such assistance) among different actors situated at different levels.
The analysis is structured into four parts. The first part of the article (section 2) sets the conceptual background of the analysis by briefly surveying the three main challenges facing IEL in general and climate change regulation in particular. In the second part (section 3), after some clarifications regarding the types of argument used in distributive-justice theory, I discuss five major theories of climate fairness. The third part (section 4) examines the current CCR in order to spell out the choices made by the drafters to balance considerations of fairness and effectiveness. The fourth and final part (section 5) summarizes the results of the analysis and spells out the types of issues that would have to be addressed in developing a realistic account of climate fairness.
2. The challenges facing IEL
It seems useful to begin with a brief analytical survey of the types of response that have been given over time to the challenges of legitimacy, effectiveness, and fairness faced by IEL. It is, of course, not my intention to provide a detailed history of the field,Footnote 4 but rather to situate the challenges now facing the redesign of the CCR against the general background of those underlying IEL as a whole.
Regarding the first challenge, the increasing recognition since the late 1960s of the need for an international regulation of certain environmental issues, as well as the development of numerous international instruments dealing with such issues, clearly suggests that, nowadays, the need for an international regulation (as opposed to a merely domestic one) of at least some environmental questions is well established. If one follows the main stages of development of IEL as a field, from the early times at which environmental protection was somewhat a by-product of the protection of an economic or strategic interestFootnote 5 to the adoption, after the 1972 Stockholm ConferenceFootnote 6 and the 1992 Rio Conference, of a wide range of international instruments dealing with increasingly complex issues, such as ozone depletion, biodiversity, or climate change,Footnote 7 the picture that emerges leaves little doubt as to the recognition by states that some environmental challenges call for an international regulation. This is not to say, of course, that such regulation has not been seen, at times, as controversial, nor that it has been considered ‘equitable’ or ‘fair’ on every point. Clearly, one of the major challenges now facing the climate change regime, as well as other regimes, is precisely one of fairness. However, the fairness controversy, which will be discussed below, has not gone as far as to deny the need for an ‘international’ regulation of some environmental questions. Therefore, I believe that, overall, IEL has satisfactorily addressed the first challenge identified above. A different question is whether the framework currently provided by IEL to manage the different environmental concerns is effective and/or fair.
Since IEL's modern inception back in the 1960s, effectiveness has always been a major issue. The obstacles to the effectiveness of IEL are many and diverse, ranging from scientific uncertainty, to political or strategic considerations, to economic counterincentives. By effectiveness, I refer here to the ability of IEL to solve, control, or at least manage a given environmental problem. In order to be effective, the adoption and operation of a given regime must not only be politically and economically feasible, but also technologically and administratively possible. In other terms, in addition to the will to commit to a given regime (which is closely related to the costs entailed by such a commitment), one must also take into account the technological and administrative capabilities of the different states concerned, some of which would be unable to comply even if they had the will to do so. The difficulties underlying the challenge of effectiveness can be illustrated in connection with the CCR.Footnote 8 Until the issuance by the Intergovernmental Panel for Climate Change (IPCC) of its Fourth Assessment Report, in 2007,Footnote 9 there was still a vivid controversy over the human causes of global warming.Footnote 10 The IPCC report has clearly endorsed, from a scientific standpoint, the view that global warming in the last centuries is very likely the result of human activity. Since then, efforts to curb emissions at both the international and the domestic levels have significantly intensified. Despite the recent controversy over the procedures followed by the IPCC as well as some of the results reached in the second volume (Working Group II) of its Fourth Assessment Report (most notably the predictions relating to the melting of the Himalayan glaciers), the physical science basis for the IPCC's main conclusions seems now sufficiently solid for states to take serious action to reduce or control emissions of GHGs and adapt to the consequences of climate change. The effectiveness challenge is therefore not so much in the divergence of views on the importance of the problem, but rather in the economic, strategic, and fairness implications of the necessary reactions. For some industrialized states, such as the United States, the economic costs of taking action are politically unpalatable, especially taking into account that under the present regime, strategic competitors like China, India, or Brazil would not be themselves required to make similar efforts. There are, of course, many reasons why these and other ‘developing’ countries refuse to do so, including considerations of fairness. This takes me to the discussion of the fairness challenge.
Considerations of justice suggest, intuitively, that those countries who contributed the most to the rise of the level of GHGs in the atmosphere throughout their economic development starting in the eighteenth century should carry a heavier burden in the efforts to stabilize global climate. Those countries who contributed little or almost nothing to such rise should instead be given the opportunity to pursue their economic development as a priority. More generally, the idea that it is fair for developing countries to focus on their economic (and social) development rather than to prioritize environmental protection has a long history that can be traced back to the modern inception of IEL. Shortly before the Stockholm Conference, in December 1971, Brazil sponsored a resolution eventually adopted by the United Nations General Assembly with 70 per cent of the votes suggestively called ‘Development and Environment’.Footnote 11 This resolution expressed the fears of developing countries that environmental protection may burden their efforts towards development. This is reflected inter alia by the assertion of ‘the primacy of independent economic and social development as the main and paramount objective of international co-operation’.Footnote 12 In the years following the Stockholm Conference, the tension epitomized by the resolution ‘Development and Environment’ remained a critical issue. In the report of the Brundtland Commission,Footnote 13 adopted some 15 years after, this tension is addressed by asserting the possibility of combining development and environmental protection through the concept of sustainable development. Sustainable development is, however, a multi-levelled concept. Hardly anyone would disagree with its broad meaning, namely meeting the needs of the present without compromising those of future generations. However, at the more specific level of how to do that, controversy remains vivid. In the context of the CCR, the fairness concern has been addressed in a variety of forms, most notably through the adoption of the principle of common but differentiated responsibilities in Article 3(2) of the UNFCCC. However, it is not clear what this principle specifically means. A senior diplomat has identified three ways in which the principle could be used.Footnote 14 They range from justifiable fairness considerations, to lower standards for treaty compliance by developing countries, to even a precondition for such compliance. It is also noteworthy that despite attempts from developing countries during the negotiation of the UNFCCC to formulate the reference to the historical responsibility of industrialized countries as a principle, such reference was only retained in a diluted manner, and it was confined to the preamble of the convention.Footnote 15
The foregoing observations illustrate the complexity facing the attempts to make fairness considerations operational and, more specifically, to find a solution that is acceptable from the perspective of both fairness and effectiveness. In fact, a significant part of the problem is the absence of an acceptable common understanding that would provide a sort of baseline for the redesign of the CCR. In the last several years, there have been some attempts at filling this gap by applying ethical reasoning to the issues raised by climate change.
3. Climate fairness in theory
There are different ways in which ethical reasoning can be applied to environmental issues. After a brief survey of the structure of ethical argument as it is commonly approached in the literature on distributive justice (3.1), I discuss some efforts to apply ethical theory to climate change (3.2).
3.1. The structure of ethical argument
A first useful distinction can be made between human-centred ethical approaches and environment-centred ones.Footnote 16 Whereas human-centred approaches evaluate acts in the light of their consequences on humans (directly or indirectly, for instance, by way of the effects of environmental damage on human welfare) or of a rule that prescribes a certain behaviour vis-à-vis humans, environment-centred approaches evaluate human action in the light of its impact on the environment (irrespective of their indirect impact on humans), or of a rule that prescribes a certain behaviour vis-à-vis the environment (understood as including both its animate – plants, animals – and inanimate – water, air, land – components). Although environment-centred approaches are important on many policy fronts, in the context of the redesign of the CCR it appears more realistic to focus on human-centred approaches. The main reason for this is that the wide-ranging effects of climate change would affect humans in a particular manner. Climate change is not an issue, such as wildlife protection, where the most directly concerned object of the actions to be evaluated is animals (or another component of the environment other than humans) as such. Actions affecting climate are most likely to impact humans as one species among the many other species now present on the planet. The primary and most powerful ethical consideration that can be mobilized in the context of climate change is therefore direct impact on humans, and possibly on the survival of part of the human population. This is, of course, not to say that other types of reasoning (including environment-centred) would not be relevant to this issue. The choice of retaining human-centred approaches is, in this context, dictated mainly by the need to take effectiveness considerations into account.
Human-centred ethical approaches can be classified according to several criteria, which reflect fundamental debates among moral and political philosophers. Let me briefly mention three classifications, which will be useful to understand how considerations of fairness and effectiveness are treated in theory and practice. A first classification focuses on the reasons why certain acts, conduct, or institutions are ethically acceptable. On this basis, ethical approaches can broadly be divided into three categories, namely consequences-based approaches,Footnote 17 duty-based approaches,Footnote 18 and virtue-based approaches.Footnote 19 It is very difficult to specifically define each approach, as each may take different forms. A more affordable task is to provide a basic characterization of the most salient features of each one of them. Regarding consequences-based approaches, the classic form of which is utilitarianism,Footnote 20 the characteristic feature is that the moral character of acts, conduct, or institutions depends only upon their consequences (in terms of a given form of value, utility, good, etc.) irrespective of their conformity with particular rules or prescriptions. Consequentialism is far more complex than this characterization conveys, as it is unclear inter alia what exactly we are supposed to maximize (pleasure, utility, multiple goods), of whom (one person, one specific group, an entire country, the entire planet), and how the calculation should be effected (with respect to acts, sets of acts, rules, sets of rules). Consenquentialism is often contrasted with duty-based or ‘deontological’ approaches, according to which the moral character of acts, conduct, or institutions depends on their external and/or internal (intent) conformity with a given rule or set of rules, irrespective of any consideration of consequences. The most prominent illustrations of this approach are, perhaps, the rational ethics elaborated by the German philosopher Immanuel KantFootnote 21 or the so-called ‘ethics of rights’,Footnote 22 which can be found at the foundations of the liberal justifications of human rights. As consequentialism, duty-based approaches are problematic in many respects, particularly because their requirements may sometimes lead to unrealistic outcomes. As for virtue-based approaches, in essence, they relate moral life (acts or conduct) to the pursuit of certain virtues. Perfectionism, as some forms of virtue-based approaches are usually called,Footnote 23 attaches moral value to the pursuit of a virtuous life. Virtuous conduct is, moreover, not to be defined by the mere respect of a given rule, but requires that such respect be the reflection of an acquired disposition to behave well in all circumstances. At the level of a society, virtue-based theories appear less relevant, as they focus on the perfectionism of an individual.Footnote 24 By contrast, consequentialist and deontological theories remain fully relevant. Different forms of utilitarianism and of ethics of rights can be and have been used to distribute the benefits and burden in different areas of human activity, from political to economic to cultural activities. Intuitively, both types of reasoning are important to achieve socially satisfactory outcomes. It seems hardly contestable that social policies should seek to increase social welfare. Equally desirable is that the increase in social welfare be not pursued even at the price of violating basic individual rights. The underlying moral values of these two forms of reasoning, namely the pursuit of the ‘good’ and the pursuit of what is ‘right’, entertain, however, complex relationships. From a theoretical standpoint, utilitarianism is indifferent as to how the benefits and the burdens are distributed among the different individuals (or individual states) in a society, or how they are distributed over time, as long as the chosen distribution yields the highest net utility. In other words, if maximizing the net utility entails sacrificing one or more sectors of the population (or one or more states), then this is acceptable in the utilitarian view. On the contrary, duty-based approaches consider as an absolute priority the respect of certain norms, even if that entails reducing welfare. Of course, there have been efforts to reconcile these two competing views, such as the so-called ‘rule-utilitarianism’Footnote 25 or John Rawls's theory of ‘justice as fairness’ applied to international relations.Footnote 26 These efforts are reflected in some theories of climate fairness, which will be discussed later on.
A second classification focuses on the underpinnings of moral standards. In other words, what is the basis to conclude that a standard of conduct or an institution has a moral character and must be respected? Two types of answer have been given to this question. According to one approach, moral character is based on the substance of the standards or institutions in question or, more specifically, on their grounding in religious beliefs, natural law, rationality, a prevailing will, or culture, irrespective of the process through which such standards or institutions were adopted in the first place. Historically, the legitimacy of many regimes and institutions was based on substantive explanations, such as their conformity with divine law or with the rational nature of man or the will of the people.Footnote 27 There is another broad strand of ethical theories that grounds the moral character of standards or institutions on the specific process through which they have been adopted, irrespective of their specific content. This approach, often referred to as ‘procedural justice’, can be found to different extents in the writings of political philosophers such as Jürgen Habermas or John Rawls, and more generally at the basis of those regimes and institutions characterized by checks and balances.Footnote 28 The main idea underlying this second strand of theories is that the rules governing the process for the adoption of standards and institutions must themselves be fair for such standards and institutions to be fair. As in the preceding classification, there are difficulties and ambiguities with each one of these approaches. One major issue concerning substantive approaches is that in many modern societies, one can no longer persuasively refer to what François Lyotard called ‘grands récits’ or ‘grand Narratives’ of history and mankind as the foundations of all morals and justice.Footnote 29 This is why institutions have turned to the consent of the people, not necessarily as a new god, but rather as the basis of legal regimes. However, such more procedural approaches also raise problems. One typical issue is how to consider a discriminatory regime that has come to power with the consent of the majority of the people or a discriminatory regime that has been adopted through an otherwise fair process.
The third classification cuts across the two preceding ones and focuses on the anthropological conceptions underlying different ethical approaches. The main question is whether it is possible to assume perfectly rational actors with no cultural attachments or specificities as the starting point for deciding what is moral and what is not, or the processes through which such decisions are made. According to those approaches often referred to as ‘liberalism’ (which may be either consequential or deontological, substantive or procedural), ethical reasoning must assume that individuals are rational actors and set aside all the cultural differences that, in practice, characterize the real world. This would be the only way to find a common denominator serving as a starting point for a universal moral theory, and thus to avoid the pernicious implications of cultural relativism. Other approaches often referred to as ‘communitarian’ have stressed the importance of taking into account community values in any attempt at building a realistic ethical theory.Footnote 30 Such values are an integral part of real people and no realistic ethical theory can make abstraction of them in order to gain generality. In fact, the effort to gain generality may itself be problematic, as ethical reasoning should take into account the common values and understandings shared by the members of a community. A very interesting account of distributive justice from a communitarian perspective, which is particularly relevant to the topic of this article, is the one provided by Michael Walzer's Spheres of Justice.Footnote 31 Instead of seeking an overall distribution system applicable to all goods, as in the case of most liberal theories, Walzer introduces in the distribution equation the shared values of each community. On this basis, he develops an account of distributive justice based on ‘distribution spheres’ concerning one particular ‘good’, the distribution of which is effected by means of distribution criteria that depend upon the social understanding of the good concerned in a given community. Walzer acknowledges that such an approach is heavily dependent upon the existence of shared values and understandings or, in other words, of a real community. The so-called ‘international community’ has not reached such a level yet and, as a result, the account of distributive justice offered by Walzer cannot be applied, for the time being, beyond political communities.Footnote 32 However, the structure of the distribution arrangements described by Walzer takes us closer to the reality of distribution efforts, including in the context of the CCR.
3.2. Climate change in ethical perspective
The foregoing considerations provide a number of useful conceptual tools to understand how ethical reasoning has been applied to the issue of climate fairness. As a rule, most accounts of climate fairness combine consequences-based and duty-based reasoning as well as substantive and procedural approaches. Moreover, most of them are closer to liberalism, in the meaning briefly characterized above, than to communitarian approaches. This is understandable to the extent that, as recognized by some communitarians, there is still no ‘real’ international community with an array of shared values and understandings sufficiently thick to give rise to distribution spheres. Therefore, the efforts at designing a theoretical framework for climate fairness have focused on how to distribute emissions rights.
A first answer (‘approach 1’) is to provide equal per capita entitlements to anthropogenic emissions. Gardiner characterizes this stance as follows: ‘some acceptable overall level of anthropogenic greenhouse emissions should be determined scientifically, and then . . . this should be divided equally among the world's population, to produce equal per capita entitlements to emissions.’Footnote 33 This distribution criterion tends to ignore the historical-emissions argument, as what counts is the current distribution basis, namely a country's population. However, some variants of the argument seek to adjust the equal distribution by taking into account the historical emissions record.Footnote 34 In the policy arena, a distributional approach along such lines was formulated already in 1990 by the Global Commons Institute under the name ‘Contraction and Convergence’ or ‘C&C’. The ‘contraction’ term of the model refers to the overall emissions budget (a reduction in overall emissions) that is targeted, whereas the ‘convergence’ term focuses on the distribution of the entitlements to such emissions that tend, over time, to a target of equal per capita distribution, to be achieved at a given date.Footnote 35
A second approach that has been advanced (‘approach 2’) is distribution of emissions rights on the basis of prior entitlement or prior use of a given resource.Footnote 36 This is, in essence, an acknowledgement of the status quo in that the use of such a criterion would distribute emissions according to the level of emissions per country or per capita at some recent point in time, which may be regularly updated. Thus, whereas this approach takes history into account, the historical emissions record is used not to challenge future entitlements, but to comfort the current level of emissions.
A third approach (‘approach 3’), which, to some extent, may be considered a more subtle variant of the preceding one, links the claimed emissions share to economic output or productivity or some efficiency benchmark. The use of such benchmark would, in practice, favour those countries with higher levels of technology, including green technology.Footnote 37 The underpinnings of these ‘benchmark approaches’ are somewhat ambiguous. Whereas they seek to reward efficiency (in terms of either output, productivity, or energy use), which is admittedly a good thing, they penalize those countries that have not yet reached efficiency standards comparable to those of industrialized countries.
A fourth approach (‘approach 4’) focuses on equalizing the marginal costs incurred by countries in their efforts to stabilize climate.Footnote 38 The core idea of this approach is not to allocate emission entitlements as such, but rather to distribute among different countries shares of the overall effort that are equally burdensome, after considering the capabilities of each state. Developing countries would thus have to contribute less to the overall effort to curb climate change, but such smaller contribution would be proportionally similar in terms of effort to the larger contribution of an industrialized country with stronger capabilities. According to its proponent:
under suitable publicity conditions, when each nation is allotted an equally burdensome share of the task or chore of dealing with climate change, then each nation knows that no other nation has stronger (prudential) reasons to defect than it has. Where this result can be achieved or satisfactorily approximated, each nation confronts an important measure of moral pressure to cooperate in the maintenance of this public (global) good from the knowledge that its defection is no better motivated than is the defection of any other nation.Footnote 39
Although resorting to marginal costs is quite challenging, as such costs are difficult to assess accurately, this approach provides an interesting attempt at incorporating a formalized account of effectiveness, understood as the absence of reasons to defect or, more precisely, the absence of a reason to defect that would be proportionally stronger than those of the other states involved.
A fifth approach (‘approach 5’), which has attracted considerable attention from practitioners and academics alike, makes a distinction between ‘subsistence emissions’, which must be allocated per capita, and other emissions, including ‘luxury emissions’, which may be allocated in some other manner. The main proponent of this approach, Henry Shue,Footnote 40 argues in essence that there is an individual right to the emissions that are necessary for subsistence or for some basic living standard, and that such a right must have moral priority over other requirements, including curbing emissions to stabilize climate. Underlying this approach, one may read the basic structure advocated by John Rawls, for whom basic rights have absolute (‘lexical’) priority over utility considerations. One interesting variant of Shue's argument, also in the line of Rawlsian approaches, is the one recently developed by Steve Vanderheiden.Footnote 41 For this author:
[A] just global emission allocation is one that (1) pays sufficient attention to global emission caps such that it avoids causing future climatic instability; (2) ensures that the distribution of emission shares among and within nations allows for adequate economic and human development; (3) assigns the remedial costs associated with climate change mitigation in accordance with a defensible account of moral responsibility, in which fault-based national liability is assigned in accordance with luxury but not survival emissions.Footnote 42
Regarding the relative priority among these principles, Vanderheiden notes that:
The right to develop cannot trump the right to survival emissions, nor can it trump the equally basic right to an adequate environment, but the former must be recognized as making a more compelling claim to limited atmospheric space than do those de facto claims now being made on that space by the relatively affluent residents of industrialized nations.Footnote 43
Approach 5 is particularly interesting in that it provides a structured view of the different grounds that can be mobilized in the context of climate change negotiations while at the same time spelling out their relative importance in terms of fairness. Specifically, the right to development may indeed base a claim for some sort of emissions tolerance, but only if the most basic rights of other peoples are guaranteed. Beyond such basic requirements, the right to development recovers its moral strength.
The main difficulty with these different approaches is not their conceptual soundness or ethical persuasiveness, but their implications from the perspective of effectiveness. Considerations of effectiveness are difficult to introduce into an ethical approach, as this would amount to accounting for the impact of power politics on ethical reasoning. However, any attempt at balancing fairness and effectiveness in the redesign of the CCR should be expected to clarify how these two types of consideration interact, or are likely to interact, in practice. In the following section, I will look at the actual manner in which considerations of fairness and effectiveness have been handled in the practice of the CCR. The analysis of the CCR will focus on how ethical reasoning has been displayed in order to shape certain questions relating not only to the distribution of emissions rights, but also to other ‘objects’ of distribution. In conducting such an analysis, I will endeavour to highlight what type of ethical reasoning seems more adapted for balancing considerations of fairness and effectiveness in this precise context.
4. Climate fairness in practice
Reference to fairness considerations in the UNFCCC is not infrequent. One could mention, for instance, the preamble of the Convention, which states inter alia that:
the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs.Footnote 44
Another powerful statement of the same idea is found in Article 3 of the Convention, at paragraphs 1 and 2:
1. The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.
2. The specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.
These two paragraphs make reference to a milder form of the ‘historical-emissions argument’,Footnote 45 namely the principle of common but differentiated responsibilities, as well as to the ‘vulnerability argument’. The contents of these two paragraphs are echoed by several other provisions of the Convention.Footnote 46
Even more emphatic is the fact that developing countries have not been included in the list of countries appearing in Annex I to the Convention, which, under the Kyoto Protocol, are subject to quantified emission targets.Footnote 47 Developing countries are instead subject to loosely defined mitigation commitments characterized in Article 10 of the Kyoto Protocol,Footnote 48 which refers back to the general mitigation obligations applicable to all states party to the Convention under Article 4(1), ‘taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances’.
This choice was explicitly made from the beginning of the process that eventually led to the adoption of the Kyoto Protocol. The very first decision adopted by the Conference of the Parties (COP) after the entry into force of the Convention, the so-called ‘Berlin Mandate’, specifically stated that the negotiation process had to be guided by:
[t]he fact that the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that the per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs.Footnote 49
Accordingly, this decision stated that the process would not:
introduce any new commitments for Parties not included in Annex I, but reaffirm existing commitments in Article 4.1 and continue to advance the implementation of these commitments in order to achieve sustainable development, taking into account Article 4.3, 4.5 and 4.7.Footnote 50
As noted by one commentator, during the negotiations leading to the adoption of the Kyoto Protocol, ‘[i]t was undisputed that, in line with the Berlin Mandate, the emission commitments in the protocol should apply to Annex I Parties under the Convention’.Footnote 51 However, some countries sought to use new annexes in the protocol – a strategy that would have allowed for the listing of commitments also for countries not included in Annex I of the Convention. Eventually, the chairman of the Ad Hoc Group in charge of the negotiations, the Argentine ambassador Estrada-Oyuela, confined himself to Annex I to the Convention in order to avoid the creation of new categories of parties through the use of new annexes – an option strongly opposed by China and the Group of 77.Footnote 52
The inventory of the provisions in either the UNFCCC or the Kyoto Protocol that are relevant from a fairness perspective could be pursued for some time. However, rather than multiplying such examples, a more illuminating approach would seek to distil from these and other provisions the more general approach to fairness implicit in these texts. In conducting such an analysis, it is important go beyond the basic understanding that developed and transitional countries carry a heavier burden than developing countries because of their relative contribution to the problem or their respective capabilities. Remaining at such a basic level of understanding would be utterly insufficient to analyse the issues of ‘degree’ involved in any attempt at balancing fairness and effectiveness in the redesign of the CCR. At the same time, one must also refrain from going into unnecessary details that would blur the overall picture rather than clarifying it.
To avoid falling into either one of these two extremes, the analysis of the fairness considerations underpinning the current CCR as well as the options proposed for its redesign will be guided by three main questions: (i) at what level (international, regional, national, sub-national) should the distribution of this common resource be effected? (‘distribution level’); (ii) among whom? (‘distribution actors’); and (iii) according to which specific distributional criteria? (‘distribution criteria’).
4.1. Distribution level
Regarding the distribution level, the current legal arrangements adopt a traditional approach, distributing the efforts among states parties to the UNFCCC and, as applicable, the Kyoto Protocol. According to Article 4(1), ‘[a]ll Parties’ shall take a series of steps to deal with climate change.Footnote 53 Other paragraphs of Article 4 impose supplementary obligations to other categories of states, which will be discussed in connection with question (ii). The Kyoto Protocol adopts a similar approach in its Articles 2, 3, and 10.Footnote 54 According to these provisions, states parties (especially those listed in Annex I of the UNFCCC, which are subject to quantified emission reduction targets under Article 3(1) and Annex B of the Protocol) must take measures (of their choice) to reduce their emissions. Thus, both the Convention and the Protocol distribute, in their present state, the burden of combating climate change among states parties.
However, the Kyoto Protocol specifically allows for an alternative approach in Article 4,Footnote 55 according to which Annex I parties may conclude an agreement to fulfil their commitments under Article 3(1) jointly. This possibility, often referred to as the ‘bubble’,Footnote 56 consists of distributing an aggregate share of the burden to combat climate change to an entity encompassing several states (e.g. the joint emission target set in Annex B to the Kyoto Protocol for the European Community). For the purposes of the Kyoto Protocol, as long as the aggregate target is met, the commitments of states parties included in the bubble are deemed to be respected, irrespective of whether some of these latter have respected their individual commitments or not. This mechanism aims to provide additional flexibility to the extent that states within the bubble are able to accommodate fairness considerations not only through their national policies (by allocating the burden of reducing emissions among different branches and sectors), but also through regional inter-state arrangements. Typical policies in this regard would allow for an increase in the emissions in one country in exchange for money transfers to another country whose needs in terms of emissions rights are lower.Footnote 57 Although such policies are most often discussed from the perspective of efficiency (itself a subcategory of effectiveness), they are also important from a fairness perspective, as they provide additional flexibility in the allocation of the burden of combating climate change.
Another possibility, which is being explored in some of the proposals submitted in the context of the current climate negotiations, mostly at the initiative of Japan, is to use a sub-national distribution level focusing on sectors of activity (e.g. aviation or maritime transport) instead of on economy-wide state-level targets, as did both the UNFCCC and the Kyoto Protocol.Footnote 58 Such an alternative approach would still distribute the burden of combating climate change among states. However, the fact that under such arrangements (e.g. sector-specific protocols or decisions of the COP), the emissions reduction could potentially have to be effected at the level of a specific sector (within a state or, by aggregation, the overall sector across states) justifies its treatment as an alternative distribution level. From a fairness perspective, this approach would most directly channel the burden of combating climate change to the sectors that are mainly responsible for GHG emissions. Although a similar distribution could be carried out by means of domestic legislation, an international instrument directly setting a given distribution may be potentially less vulnerable to domestic industry pressures, much in the way that protected zones established by international law may be more effective than those established only by domestic law. This is, of course, an empirical claim, the accuracy of which would most likely vary from one country to another. Indeed, industry lobbies may, for instance, be able to block the ratification of an international instrument, thus thwarting in practice the main advantage often associated with sectoral approaches, namely the ability to bring into the agreement states who are not ready to undertake economy-wide commitments.
4.2. Distribution actors
The identification and conceptualization of distribution actors are closely related to the distribution level selected. Quite obviously, for an inter-state distribution level, the distribution actors will be states. Similarly, for a higher distribution level, the distribution actors will be groups of states acting as a single entity, whereas for a sub-national (e.g. sectoral) distribution level, the distribution actors will be sub-national entities, either legal (a province or a federated state) or conceptual (e.g. a sector or an industry). However, the analysis of distribution actors is not limited to the ‘level’ of the actors concerned. The most important issue captured by this second dimension is, in fact, the substantive identification and conceptualization of the relevant actors. In the context of the CCR, we must therefore focus on the categories of states (Annex I parties, non-Annex I parties, developed-country parties, countries undergoing the process of transition to a market economy, developing-country parties, etc.) or sectors (aviation, maritime transport, etc.) used to operate the distribution in a given instrument. The conceptual scope of these categories has, indeed, important distributional consequences that require clarification. For instance, the selection of the wide-ranging category of ‘parties not included in Annex I’, equated for many purposes with that of ‘developing-country parties’, can be seen as one of the main obstacles to the effectiveness of the CCR as well as one of the main bones of contention of the current negotiations. Similarly, defining a sector as ‘transport’ is fundamentally different from speaking of ‘automobiles’, as speaking of ‘land-use change’ is different from speaking of ‘forestry’. The selection and definition of conceptual categories are thus major tools to either stress or downplay a material cleavage among states or its implications in terms of fairness.
The UNFCCC and the Kyoto Protocol are both based on a fundamental distinction between ‘parties included in Annex I’ and ‘parties not included in Annex I’. This distinction provides the thrust of the whole CCR as it currently stands. Although it was used parsimoniously in the text of the Convention,Footnote 59 such distinction pervades the text of the Kyoto Protocol.Footnote 60 The main purpose of using this distinction is to circumscribe ratione personae the scope of most of the obligations set out in the Protocol. Under both the Convention and the Protocol, parties included in Annex I have more stringent obligations, the most important of which are the emissions-reduction commitments under Article 3(1) and Annex B of the Kyoto Protocol. Parties included in Annex I carry therefore a heavier burden than other countries in dealing with climate change. The Convention and the Protocol supplement this basic distinction with some additional ones. In particular, ‘developed-country parties included in Annex II’ of the Convention (which excludes ‘parties included in Annex I that are undergoing the process of transition to a market economy’Footnote 61) have additional obligations in connection with financial assistance and technology transfer to ‘developing-country parties’.Footnote 62 Some provisions introduce further distinctions within the category ‘developing-country parties’ to better reflect the position of certain states, such as ‘developing-country parties that are particularly vulnerable to the adverse effects of climate change’,Footnote 63 ‘small island countries’,Footnote 64 ‘countries with low-lying coastal areas’,Footnote 65 ‘countries with arid and semi-arid areas, forested areas and areas liable to forest decay’,Footnote 66 ‘countries with areas prone to natural disasters’,Footnote 67 ‘countries whose economies are highly dependent on income generated from the production, processing and export, and/or on consumption of fossil fuels and associated energy-intensive products,Footnote 68 or ‘least-developed countries’,Footnote 69 in an attempt to take into account the interests of the different negotiating groups and blocks.Footnote 70
Despite the apparent accuracy of the categories, what is critical for distribution purposes is how each category is used or, more specifically, what benefit/burden is attached to a given category. Viewed from this perspective, the current CCR seems to incur a number of intentional oversimplifications, of which two are particularly important. First, the potential recipients or ‘creditors’ of the obligation of ‘developed-country parties included in Annex II’ to provide financial assistance include not only poor countries, but also emerging economies.Footnote 71 Second, except for the case of least-developed countries, which is expressly envisioned in both the UNFCCC and the Kyoto Protocol (by reference), the obligations of countries such as China, Brazil, and India are virtually identical to those of the other countries that are far poorer, less developed, and, most importantly, less polluting. For these reasons, there have been some attempts at either clarifying the contents of the term ‘developing countries’ or, more radically, at introducing new categories more adequately reflecting the position of emerging economies. Let me deal with these two issues in turn.
Regarding the clarification attempts, at the seventh Conference of the Parties, in 2001, the Central Asia, Caucasus, Albania and Moldova Group (CACAM) requested clarification of their status in connection with their eligibility under the Convention's financial assistance mechanism, operated by the Global Environmental Facility (GEF).Footnote 72 As stated in the note introducing the items raised by the CACAM countries in the agenda, a number of countries not included in Annex I of the Convention (including the CACAM countries) are not considered or do not consider themselves ‘developing countries’, and yet they are interested in receiving financial and technical assistance. The letter requested the Convention's Executive Secretary, in particular, to provide ‘an official legal clarification in regard to the status of our countries in the context of decisions of the UNFCCC and the Kyoto Protocol’.Footnote 73 The issue was subsequently considered by the Subsidiary Body on Implementation (SBI) established under the Convention, as well as by the COP, but no official definition has so far been adopted.Footnote 74 A number of COP decisions suggest, however, that any party not included in Annex I, whether it is considered or considers itself a ‘developing country’ for other purposes, is potentially eligible for financial assistance under the Convention's mechanisms.Footnote 75 Further clarification of what specific circumstances entitle a country (either a ‘developing country’ or country not covered by this term) to have access to financial and/or technical assistance would clearly constitute an improvement in terms of fairness.
In this connection, there have also been some initiatives to redefine the boundaries between ‘parties included in Annex I’ and ‘parties not included in Annex I’, mostly to account for the specific position of emerging economies. Here, I will limit my analysis to three of these initiatives. The first is the Draft Protocol submitted by the United States in June 2009, in view of the Copenhagen Summit.Footnote 76 Article 2(1) of this instrument required ‘developed-country parties’ to state quantified emissions-reduction targets in the 2020 timeframeFootnote 77 as well as the formulation and submission of a low-carbon strategy of some quantified amount by 2050.Footnote 78 Paragraph 2 of this same article stated that ‘[r]ecognizing that the circumstances of countries naturally evolve over time, Paragraph 1 above shall apply, when Appendix 1 is next updated, to other Parties in accordance with objective criteria of economic development’.Footnote 79 Moreover, paragraph 3 of this same article required ‘developing country Parties whose national circumstances reflect greater responsibility or capability’ to state ‘nationally appropriate mitigation actions in the 2020/[] timeframe that are quantified’Footnote 80 as well as to adopt a long-term low-carbon strategy.Footnote 81 The difference between the position of emerging economies, thus characterized, and that of other developing countries is further emphasized by Article 2(4) of the Draft Protocol, according to which ‘[o]ther developing country Parties should implement nationally appropriate mitigation actions and develop low-carbon strategies, consistent with their capacity’.Footnote 82 As we now know, the US proposal did not overcome the scrutiny of other states. However, the effort to redefine the basic distinction between ‘parties included in Annex I’ and ‘parties not included in Annex I’ was to some extent preserved, albeit in a diluted manner, in the so-called ‘Copenhagen Accord’.Footnote 83
As is the Convention, the Copenhagen Accord is premised in the principle of common but differentiated responsibilities,Footnote 84 and it expressly states at the outset that the goal to achieve the peaking of global and national emissions as soon as possible should be pursued, ‘recognizing that the time frame for peaking will be longer in developing countries and bearing in mind that social and economic development and poverty eradication are first and overriding priorities of developing countries’.Footnote 85 If these two statements seem to reaffirm, rather than blur, the distinction between distribution actors made in the Convention and the Kyoto Protocol, some nuance is introduced in paragraph 5 of the Accord, according to which:
[n]on-Annex I Parties to the Convention will implement mitigation actions, including those to be submitted to the secretariat by non-Annex I Parties in the format given in Appendix II by 31 January 2010, for compilation in an INF document . . .. Least developed countries and small island developing States may undertake actions voluntarily in the basis of support.Footnote 86
The distinction thus emphasized is perhaps too shy, and it was to some extent present already in the Convention. What is more noteworthy is that despite the fact that the Copenhagen Accord is neither a binding agreement nor was it approved by the COP,Footnote 87 a large number of developing-country parties declared their support for the document, by communicating voluntary but quantified emissions-reduction or efficiency targets or at least current and projected measures.Footnote 88 Therefore, the attempts of some developed states at redrawing the initial distinction on which the CCR is based in order to enhance the commitments of emerging economies seems to be moving forward. With it, a more effectiveness-sensitive approach to fairness is taking shape, to the extent that, despite their fairness claims, several emerging economies have nevertheless made public their emissions-reduction pledges.
This point seems to be confirmed by the thrust of the current negotiations. As is well known, since COP 13, which took place in Bali in 2007, the negotiations regarding the post-2012 CCR have followed two main tracks: one under an Ad Hoc Working Group on the Kyoto Protocol (AWG-KP) and the other under an Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA). The fundamental difference between these two negotiation tracks is that the Kyoto track preserves the initial equation as regards distribution actors whereas the LCA track seeks to introduce a new equation rebalancing the level of commitments of emerging economies. In other words, it is a distributional question that concerns the identity and the conceptualization of the actors among which the burden of fighting climate change must be (re)distributed. The draft document prepared by the chair of the AWG-LCA as a basis for the negotiations of August 2010 in Bonn reflected in part some of the choices underlying the Copenhagen Accord.Footnote 89 Although this is only a draft, which includes opposing versions advanced by different parties, many similarities with the approach adopted by the Copenhagen Accord can be detected. Let me briefly point out a few of them that are relevant from the perspective of redrawing the boundaries of the distinction between ‘Parties included in Annex I’ and ‘Parties not included in Annex I’. Chapter 1, letter G of the Working Document focuses on ‘Enhanced Action on Mitigation and Its Associated Means of Implementation’. Paragraph 29 of the text takes up the basic idea of paragraph 5 of the Copenhagen Accord in stating that:
[Developing country Parties will implement the mitigation actions submitted to the secretariat in the format of Appendix II, consistent with Article 4, paragraph 1, and Article 4, paragraph 7, and in the context of sustainable development][Those mitigation actions taken and envisaged by developing countries [shall] be communicated in national communications or otherwise communicated to the secretariat and be added to the list in Appendix II]].Footnote 90
Moreover, when supported by international technological, financial, or capacity-building assistance, such mitigation action ‘shall be subject to measurement, reporting and verification at the international level’.Footnote 91 Furthermore, developing-country parties are further expected to prepare low-emission development plans, although such plans are not a precondition for international support.Footnote 92
Again, as the wording proposed by the Working Document will have probably changed by the end of COP 16, in Mexico, there is little interest in multiplying the references. What I find nevertheless noteworthy is the effort, suggested by this and the other two documents mentioned, to redefine the distribution actors to enhance the commitments of emerging economies and thereby accommodate fairness and effectiveness considerations.
4.3. Distribution criteria
Underlying the choices made in connection with the distribution level and the distribution actors is a set of often unspecified distribution criteria. Such criteria provide, however, the very reasons why a distributional choice is made in a given way. For instance, the differing commitments undertaken by ‘parties included in Annex I’ and ‘parties not included in Annex I’ under the current CCR can be largely explained as an application of two distribution criteria, namely ‘historical emissions’ and ‘level of development’. Conversely, the attempts at redrawing the boundaries between the aforementioned categories of states, in order to enhance the commitments of emerging economies, can be seen as an application of two other distribution criteria, namely ‘current and projected emissions’ and ‘economic power’. As this basic example shows, it is very important to spell out both the criteria that may justify a given distribution and the relative weight given to each criterion for any given distributional choice. This analytical process has been conducted in abstracto by the different ethical approaches to climate change reviewed in section 3 of this article. My purpose here is not to duplicate such analysis or to add an additional perspective, but rather to induct from both the current legal arrangements and the options under negotiation the distribution criteria that seem to be guiding the redesign of the CCR. As we shall see, such criteria often take the form of trade-offs between two competing values.
A first criterion concerns the manner in which the emissions of GHGs are calculated. The criterion most frequently used focuses on the production of GHG emissions rather than on their consumption. An example will help clarify the distributional implications of this choice. Under the production-based approach, the emissions arising from the production of a ton of cement in China would be counted as part of China's emissions share (although, technically, China still has none under the current arrangements). This would remain the case even if the use or consumption of such a ton of cement takes place in Switzerland or Germany. The current CCR follows a production-based approach.Footnote 93 A change of approach would have major distributional consequences, as one could expect that a large part of the GHG emissions originating in developing countries would then be counted as part of the emissions of their export markets, which are often developed countries.
A second criterion widely used in both the current and the projected legal arrangements is historical emissions. As already noted, allocation of the burden to mitigate climate has so far been operated largely on the basis of historical emissions. This is mentioned inter alia in the UNFCCC (preambleFootnote 94 and, less explicitly, Article 3(1)Footnote 95), in the Kyoto Protocol (which, in Article 3, imposes quantified commitments only on parties included in Annex I), and, more recently, in the Working Document (Chapter I, preambleFootnote 96). However, this criterion has been used to justify the principle of allocation (to Annex I states) and not the specific shares of each country (which were not negotiated on the basis of quantified estimations of historical emissions). The most important competing value is effectiveness, to the extent that allocating the burden of combating climate change solely on the basis of historical emissions would not be sufficient to prevent dangerous human interference with the climate system,Footnote 97 let alone to reach the objective mentioned in paragraph 1 of the Copenhagen AccordFootnote 98 of limiting the rise in global average temperature to a maximum of 2°C. Given the projected emissions of a number of developing countries, especially emerging economies, their contribution to the global mitigation appears indeed indispensable to stabilize GHG concentrations in the atmosphere at an acceptable level. Without such contribution, the ‘historical-emissions’ criterion would yield unfair results, because those developing countries that are more vulnerable to the consequences of climate change would suffer disproportionally to accommodate the interests of emerging economies. This concern started to be more directly addressed after the COP shifted its attention specifically to adaptation measures under Article 4(8)–(9) of the Convention.Footnote 99 This shift raised, in turn, another issue of fairness arising from the difference between adaptation of developing countries to the consequences of climate change (a need aired, in particular, by small island nations and least-developed countries) and adaptation of developing countries to the impact of the implementation of response measures (a need aired by oil-exporting countries and, more specifically, by Saudi Arabia). The ‘developing countries’ concerned by these two dimensions of adaptation are in very different situations. Whereas small island nations and least-developed countries actively seek to strengthen the CCR, oil-exporting countries see such an eventuality as a considerable drawback to their economic interests.Footnote 100 And yet, for political reasons, the concerns of the two groups were artificially linked as one point in the agenda. As noted by Yamin and Depledge, since COP 5 in 1999, there have been efforts to dissociate these issues in order to better deal with the needs of the most vulnerable countries.Footnote 101 The link is still apparent, however, in the text of the Copenhagen Accord,Footnote 102 as well as in the Working Document,Footnote 103 although in both cases, the emphasis is clearly on assisting vulnerable countries.
A third criterion opposes development needs to prior entitlement and lifestyle. If the historical-emissions criterion concerns, as I have mentioned, the principle of allocation (to Annex I) of the burden to combat climate change, the present criterion focuses instead on providing a basis for quantifying specific shares. This criterion has been at the root of the CCR from its inception in the UNFCCCFootnote 104 to the current negotiations.Footnote 105 As discussed in section 3 of this article, this criterion is also the one privileged by most ethical theories for the distribution of emission rights among states and/or individuals. According to the manner in which it is spelled out, its application would tend to strengthen the bargaining position of developing countries (approach 1 – equal per capita entitlement to emissions – and approach 5 – allocation per capita of subsistence emissions and allocation of luxury emissions by other criteria)Footnote 106 or that of developed countries (approach 2 – allocation based on prior use – and approach 3 – allocation on the basis of efficiency).Footnote 107 Whereas it seems justified to grant developing countries more emission rights in order to further their development, it appears unrealistic to expect that developed countries will drastically reduce their emissions to prioritize the needs of other countries. They may do so to some extent and/or offer assistance to developing countries, but it is difficult to determine the precise extent to which such an effort should be carried out. The key question in this respect would be to identify the threshold of socioeconomic development beyond which developing countries (or their populations) have no longer priority over developed countries (or their populations) in connection with emissions rights. If China, India, or Brazil were to reach (if they still have not) a given threshold of socioeconomic development (which developed countries reached in the past), such a priority would no longer operate. One may ask whether it is possible at all to identify a threshold that would be both morally and realistically satisfactory. If the threshold is too high, the only way to preserve the possibility of attaining it (fairness) may not allow stabilizing the climate (effectiveness), either because the participation of one or more of the countries who claim the right to attain such threshold is a sine qua non condition of effectiveness or because tolerating accession to such threshold would be politically unrealistic from the perspective of developed countries. From an empirical standpoint, finding such a threshold is, of course, a matter of negotiation. One important approach in seeking a balance between the interests of the different states is the adjustment of the timeframe. It seems now widely recognized that the peaking of the emissions of developing countries will have to take place at some point in time, but it will be later than for developed countries. This approach leaves some room for phase-out policies in developed countries and for development in developing countries.
A fourth and related distribution criterion would be based on the population level of each country. This is a position defended by countries such as India or China by reference to equal per capita emissions, which would amount to multiply their available emissions by an order of 5–15 on average. As noted in the statement of an Indian think tank quoted in the introduction to this article:
[a]t a time when a large part of India's population does not even have access to electricity, Bush [the former U.S. president] would like this country to stem its ‘survival emissions’, so that industrialized countries like the U.S. can continue to have high ‘luxury emissions’. This amounts to demanding a freeze on global inequality, where rich countries stay rich, and poor countries stay poor, since carbon dioxide emissions are closely linked to GDP growth.Footnote 108
The underpinnings of this criterion have already been discussed in connection with the foregoing criterion. As to the limitations to the use of per capita distribution, they are mainly two: (i) effectiveness (multiplying the emissions rights of certain emerging economies would prevent climate stabilization, even if the emissions rights of the developed countries were significantly reduced, which, realistically, could only be pushed up to some extent); and (ii) fairness to other developing countries who would not be able to profit from their emissions entitlements as fast as emerging economies and would, in practice, lose their entitlements as the atmosphere becomes saturated. Moreover, the distribution of emissions within a country such as China or India may also raise fairness concerns, to the extent that it seems contradictory to claim larger emission entitlements to improve the lives of the population without taking serious steps to proceed to a fair domestic distribution of such entitlements. In retrospect, this criterion seems to have operated as a bargaining tool rather than as an actual approach to distributing the benefits/burden of combating climate change, as countries such as China and India have formulated voluntary emissions-reduction objectives without making them dependent on per capita distribution.Footnote 109
A fifth distribution criterion, which is related to the third criterion identified above, is based on financial and technological capability. The thrust of this criterion is that those states that have better means to combat climate change should carry a proportionally heavier burden, in a way comparable to progressive taxation of revenue. Under the current CCR, this criterion underlies the distinction between ‘parties included in Annex I’ and ‘parties included in Annex II’. Only the latter are technically required to provide financial and technological assistance under Article 4(3)–(5) of the Convention and Article 11 of the Kyoto Protocol.Footnote 110 The difference between Annex I and Annex II of the Convention is interesting because it shows, to some extent,Footnote 111 the respective scope of the historical emissions criterion (Annex I) and of the capabilities criterion (Annex II). The selection of providers of funds, technology, and capacity-building is indeed based on capabilities and not on historical emissions, as suggested by the deletion of Turkey, an Annex I country, from the list in Annex II because of Turkey's reduced capabilities as compared with those of other Annex II countries.Footnote 112 At the same time, the definition of the recipients of such assistance is also based, at least in part, on capabilities, as suggested by the fact that some Annex I countries undergoing a transition to a market economy could obtain funding from the GEF (although not under the Convention's financial mechanism) for their climate change-related activities, provided that they are parties to the UNFCCC.Footnote 113 However, the fact that, as already pointed out when discussing the distribution actors, any ‘party not included in Annex I’ would be potentially eligible to receive assistance shows that the scope of the capabilities criterion is to some extent limited by its interplay with the historical-emissions criterion.
Aside from the five foregoing criteria, other distribution criteria could potentially be inducted from the legal arrangements forming the CCR. However, the criteria discussed in the preceding paragraphs are, in my view, those that better reflect the fundamental distributional choices made in the design and the current attempts at redesigning the CCR.
5. Concluding remarks
The foregoing considerations suggest that the attempts at designing a set of rules for the CCR that is both fair and effective should be based on a clear understanding of (i) the distribution level, (ii) the distribution actors, and (iii) the distribution criteria, applicable to allocate the benefits/burden of combating climate change.
Regarding the distribution level, the approach followed so far privileges an inter-state distribution, although other distributional levels could be selected. I mentioned two of them, namely the supranational level illustrated by the quantified emissions target set in Annex B to the Kyoto Protocol for the European Community and the sub-national level exemplified, with some nuances, by transnational sectoral approaches.
The selection of a distribution level is closely related to the identification and conceptualization of the distribution actors. Once it is decided that the distribution will be operated among states, it is still necessary to determine what the position of the different states will be. One possibility would be to treat them all on an equal footing, although this approach would be unsatisfactory in an area such as climate change with respect to which states are, according to their circumstances, in very different positions. Another possibility is to introduce differences of treatment among different distribution actors. Such an approach seems much more appropriate in the context of the CCR, although differential treatment raises in turn many difficult questions, such as the criteria that would be used to identify and conceptualize different categories of distribution actors. Moreover, the situation of distribution actors may change over time. The CCR has been based, since its inception, on the principle of common but differentiated responsibilities, provided in Article 3(1) of the UNFCCC. This principle has been operationalized by means of the fundamental distinction between ‘countries included in Annex I’ (with real commitments) and ‘countries not included in Annex I’ (without real commitments) – a distinction that seems no longer adapted to reflect the situation of emerging economies. For these reasons, there have been attempts at redrawing the boundaries of this distinction, the success of which has so far remained limited.
Underlying the differentiation of the actors concerned by a given distribution is a set of ‘distribution criteria’, more or less explicit in different regimes. Such criteria often take the form of a trade-off involving competing values. The weight given to each value and, as a result, the manner in which the relevant criterion operates considerably depends upon the object of the distribution (e.g. burden of reducing emissions, rights to emit GHG with or without quantified limits, contribution to financial and technological assistance, access to such assistance). Some criteria (e.g. historical emissions) may explain the allocation of one object of distribution (e.g. burden of reducing emissions) better than that of a different object of distribution (e.g. contribution to financial and technological assistance, which is based on capabilities). I have endeavoured to identify and discuss the criteria that I see as the most important to understand the choices underlying the CCR and the current negotiations towards its redesign. The use of different criteria for different objects, and the relative weight given to the competing values involved in each criterion, act as important tools to balance considerations of fairness and effectiveness.
The basic conclusion that, in my view, emerges from the foregoing discussion is that in climate change as in many other areas, a fair but ineffective distribution may, in fact, be worse, and therefore more unfair, than an ethically less elegant patchwork of criteria applied to different objects distributed among different actors at different levels. Such an alternative account bears some resemblance to Michael Walzer's conceptualization of different distributional spheres each concerning a specific good and governed by a specific distribution criterion. However, unlike in Walzer's account, the distribution of the different ‘goods’ or ‘objects’ operated by the CCR is not based on shared values or understandings. Rather, the ‘objects’ and ‘criteria’ are the result of complex and lengthy negotiations, which bear in turn some resemblance to procedural-justice accounts. The overall balance between fairness and effectiveness that arises from the analysis of the CCR is thus a complex aggregation of more specific balances struck with respect to specific distribution objects. A realistic account of climate fairness should, in my view, start at the level of each ‘sphere’, identifying the object of distribution, developing appropriate categories of distribution actors, and exploring the most appropriate criteria to organize the distribution for each object. Only then would it be possible, on the basis of how the different balances have been struck for each object, to assess the overall fairness of the CCR. I have not provided such an account here, but I do hope to have spelled out the types of issue that would have to be addressed in the pursuit of such an endeavour.