The Paris Agreement and Theories of Justice

by Alice Kaswan

December 21, 2015

As we seek to understand and assess the Paris Agreement over the coming months and years, we will continue to contemplate the critical underlying political and ethical question: who should be responsible?  And to what degree should that responsibility take the form of direct action versus providing support in the form of financing, technology transfer, and capacity-building?  As my Center for Progressive Reform colleague Noah Sachs has observed, the principle of common but differentiated responsibility (CBDR) has been a consistent theme in all of the climate negotiations. But, what CBDR means – why and when responsibilities should be common, and why and when they should be differentiated -- is continually contested and continually shifting.  I briefly highlight the allocation of responsibility in the Paris Agreement.  Drawing upon two recent articles on adaptation justice, I then provide a short roadmap to the theories of justice at play in the international negotiations, theories relevant to determining responsibility for both mitigation and adaptation.

Allocations of Responsibility in the Paris Agreement

The Paris Agreement (the Agreement) continues to manifest the principle of common but differentiated responsibilities, a principle repeated in multiple contexts throughout the Agreement. (See, e.g., Art 2, par. 2)  In contrast to earlier agreements, however, we see somewhat more emphasis on common obligations: each Party is obligated to make “nationally determined commitments” (NDCs) regarding emissions, not just developed countries.  (Art. 4, par. 2)  Nonetheless, the commitments remain differentiated.  The Agreement recognizes “the specific needs and special circumstances of developing country Parties.”  (Preamble)  Collectively, the Agreement strives to have global GHG emissions peak “as soon as possible” and then rapidly reduce, but recognizes “that peaking will take longer for developing country parties.” (Art. 4, par 1) As countries submit successive NDCs, they are expected to progressively reduce emissions, but the Agreement again reiterates CBDR in light of “different national circumstances.” (Art. 4, par. 3)  The Agreement indicates that developed countries “should” translate their NDCs into specific economy-wide targets, but developing countries should simply move toward such targets, again recognizing different national circumstances.  (Art. 4, par. 4) Throughout, the need to reduce emissions is qualified by a recognition of developing countries’ need for sustainable development.  (See, e.g., Preamble language)

In the context of adaptation, the Agreement creates a common obligation for all Parties to: “as appropriate, engage in adaptation planning processes and … implementation….” (Art 7, par. 9).  At the same time, differences are noted.  The Agreement repeatedly recognizes developing country vulnerability to the consequences of adaptation and the developed countries’ role in assisting them.  It recognizes “the urgent and immediate needs of those developing country Parties that are particularly vulnerable to the adverse effects of climate change,” (Art. 7, par. 2), and the importance of supporting international cooperation that takes into account their needs. (Art. 7, par. 6).  The Parties agreed to continue to implement the Warsaw International Mechanism for Loss and Damage to help nations address actual harm.  (Art. 8)

The Agreement also suggests differentiated responsibilities for supporting both mitigation and adaptation. The initial preamble recognizes “the urgent need to enhance the provision of finance, technology and capacity-building support by developed country Parties … to enhance pre-2020 action by developing country parties.”  In terms of support for mitigation, the Agreement observes the “need to support the developing country Parties for … effective implementation,” (Art. 3), and observes that developed country support for developing country mitigation efforts will allow developing countries to meet more ambitious goals. (Art. 5, par. 5)  Article 9 states that developed countries should take the lead in mobilizing global finance, “taking into account the needs and priorities of developing countries.” (Art. 9, par. 3.)  Building on earlier commitments, the preamble indicates that the floor for such financing should be USD 100 billion per year, with efforts to increase support prior to 2020. (PP 54 and 115)  Article 10 stresses the importance of technology transfer for mitigation and adaptation, while Article 11 stresses the importance of capacity-building in developing countries, and, while acknowledging the role of all Parties in enhancing capacity in developing countries, states that developed country Parties should enhance support for such actions.  (Art. 11, par. 3) 

Theories of Justice and Responsibility

The Paris Agreement created a framework for future commitments, leaving many of the details to be determined, and to evolve over time.  As countries determine their individual commitments to mitigation, adaptation, and, for the developed countries, to financing and supporting both, and as they justify those commitments to the community of nations, several theories of justice will undoubtedly be in play.  This essay briefly maps those theories, drawing upon two recent articles: Climate Adaptation and Theories of Justice, forthcoming in a German journal on law and philosophy, and Adaptation Justice, a chapter for Edward Elgar’s forthcoming Encyclopedia on Climate Change Law. 

“Corrective justice” focuses on whether a nation owes something to others because they caused them harm, triggering the polluter pays principle, or because they benefitted from that harm, triggering a variant of the beneficiary pays principle.  In this essay, I focus on principles of responsibility, not legal liability.  While they are closely related, the Parties have resisted tying ethical responsibility to a legal duty.  (See Preamble, Par. 52: “Article 8 [discussing provisions for loss and damage] does not involve or provide a basis for any liability or compensation.”)

The scope of corrective justice is far from precise.  One debate concerns whether corrective justice principles are triggered by pure causation, or whether fault is a prerequisite.  In the climate debate, for example, should the developed nations that caused the build-up of greenhouse gases be responsible for all of their historic emissions, or only ones for which they can be deemed at fault?  If we determine that fault is at least relevant, then how should it be defined?  Many argue that knowledge is critical – that nations are responsible for emissions to the degree they knew about their ill effects, after the major climate reports in the early 1990s.  Even then, should countries be responsible for all such emissions?  To draw on the work of Henry Shue, what account should be taken of the degree to which the emissions were necessary for basic subsistence needs, rather than being luxury emissions? States with low per capita emissions are arguably emitting at a subsistence level in comparison with those who have high per capita emissions. And what account should be taken of the degree to which nations have or have not made efforts to reduce their emissions?  Looking forward, to what extent should we determine obligations based upon current levels of emissions and to what extent based upon historic contributions?  As many emerging economies increase emissions, in absolute and per capita terms, the relative weight given to current versus historic emissions is a critical variable.  And, to the degree the international negotiations focus on nation states, how do we address disparities in emissions within states, where some citizens contribute high emissions and others barely any?

Distributive justice theories begin with a focus on existing conditions, whether a given level of development (in the climate mitigation debates) or a given vulnerability to climate change impacts (in the climate adaptation debates). Several conceptions of distributive justice are possible: a utilitarian emphasis on achieving the greatest good for the greatest number, egalitarian theories, and a “minimum capabilities for each” approach.  Where distributive justice is the focus, an additional theory of responsibility emerges: the “ability to pay.”  Under “ability to pay,” the touchstone for responsibility is the capacity to help, not just corrective justice principles.

How do these theories track the responsibilities laid out in the Agreement?  Viewed through a corrective justice lens, the Agreement’s emerging expectations of developing countries reflect awareness that developing countries’ increasing emissions justify increasing responsibility.  Nonetheless, developed countries’ disproportionate contribution to the existing build-up and their high per capita emissions relative to developing countries suggest the justice of continuing differentiation.

In addition, from a distributive justice perspective, developed countries’ need for basic necessities suggests that their emissions obligations must be balanced with their need for sustainable development.  Moreover, developing countries’ high vulnerability to climate impacts and low financial and institutional capacity suggests the wisdom of the Agreement’s provisions for developed country adaptation support.

Conclusion

In Adaptation and Theories of Justice, I offer my take on the overlapping relationship of these theories of justice in the context of global support for adaptation.  There is, however, no single just resolution to the question of responsibility in either the adaptation or mitigation context.  These conversations will be never-ending.  Clarity about the operative theories of justice could facilitate communication and mutual understanding.  Questions of fairness, equity, and justice are the right subjects for international debate about responsibility for past actions and responsibility for the future. Negotiating positions grounded in principle will facilitate international dialogue and enhance the legitimacy of negotiated outcomes.

 

Tagged as: Paris international
Be the first to comment on this entry.
We ask for your email address so that we may follow up with you, ask you to clarify your comment in some way, or perhaps alert you to someone else's response. Only the name you supply and your comment will be displayed on the site to the public. Our blog is a forum for the exchange of ideas, and we hope to foster intelligent, interesting and respectful discussion. We do not apply an ideological screen, however, we reserve the right to remove blog posts we deem inappropriate for any reason, but particularly for language that we deem to be in the nature of a personal attack or otherwise offensive. If we remove a comment you've posted, and you want to know why, ask us (info@progressivereform.org) and we will tell you. If you see a post you regard as offensive, please let us know.

Also from Alice Kaswan

Alice Kaswan is a Professor at the University of San Francisco School of Law, and a member of the board of directors of the Center for Progressive Reform.

Recommended Resources:
Climate Change
Time for Real Action on Global Warming

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015