School of Geography, Politics &Sociology

Reconciling Effectiveness and Fairness: An Ethical Argument forBridging the Impasse in the Climate Change Regime

By Gareth Greatrex12th September 2014

Submitted in partial fulfillment of the requirements for the degree ofMaster of Arts in International Political Economy

Declaration: I, Gareth Greatrex, hereby declare that except where acknowledged, this work is my own and has not been submitted at any other institution.

Gareth Greatrex12th September 2014

Abstract The ethical significance of climate change rests in its deleteriouseffects on the lives and wellbeing of all humanity. Despite thiswidely accepted reality, climate politics continues to falter in itsattempts to achieve a multilateral agreement. At the heart of thisfailure are the dichotomous notions of justice between the developedand developing world. The US and its allies call for an abandonmentof equity concerns in the climate change regime, prioritizing theneed for an effective regime that includes all major developingemitters. The developing world meanwhile, especially China,prioritizes fairness over effectiveness by calling for an idealmoral interpretation of the UNFCCC’s core principle of “common butdifferentiated responsibilities”. This dichotomy has led tonegotiating deadlock, perpetrating a scenario where the dogmaticpursuit of either fairness or effectiveness negates the possibilityof mitigating dangerous levels of climate change. This dissertationchallenges the “statist” framing of climate justice, and finds thatthe reconciliation of these two dimensions is fundamental toachieving long-term climate stability. This challenge is undertakenby developing two principles: first, a burden-sharing principle tofairly and effectively assign climate change mitigation duties amongthe world’s high-emitting affluent. Second, to assign duties toinduce compliance with the burden-sharing principle among the moreobstinate actors in climate change. These two principles might serveas the foundation of a principled bargain between thedeveloped/developing world, achieving effectiveness withoutsacrificing fairness.

List of Acronyms

ATP

BP

BPP

CAP

CBDR

CCR

CEO

COP

CPR

ETS

EU

GDP

GHG

ICC

IPCC

KP

MIT

NCP

NGO

OECD

PI

PII

Penn State

PPP

The Ability to Pay Principle

British Petroleum

The Beneficiary Pays Principle

Collective Action Problem

Common But Differentiated Responsibilities

Climate Change Regime

Chief Executive Officer

Conference of Parties

Common Pool Resource

Emissions Trading System

European Union

Gross Domestic Product

Greenhouse Gases

International Criminal Court

Intergovernmental Panel on Climate Change

Kyoto Protocol

Massachusetts Institute of Technology

Non-Cooperator Pays Principle

Non-Governmental Organisation

The Organisation for Economic Co-operation and

Development

Principle One- Burden-Sharing Duty

Principle Two- Compliance Principle

Pennsylvania State University

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UK

UNFCCC

US

WTO

WWII

The Polluter Pays Principle

The United Kingdom

United Nations Framework Convention on Climate Change

The United States of America

The World Trade Organisation

World War Two

Contents Declaration:..............................................................2

Abstract..................................................................2

List of Acronyms..........................................................3

Contents..................................................................4

1.0 Chapter One: Introduction.............................................6

1.1 Dichotomous Notions of Climate Justice..............................7

1.2 Effectiveness vs. Fairness.........................................10

1.3 Research Question..................................................12

1.4 Main Argument......................................................12

1.5 The Aims and Scope of this Dissertation............................15

1.6 The Relevance of the Research......................................16

1.7 Research Methodology...............................................17

1.8 A Conceptual Preliminary: The “Decent Living” Threshold............19

1.9 Organisation of Dissertation.......................................20

2.0 Chapter Two: Historical Responsibility & the Duty to Pay.............21

2.1 The Polluter Pays Principle........................................21

2.2 The Beneficiary Pays Principle.....................................23

2.3 Practicality Concerns for Historical Responsibility................25

2.4 Maximal Inefficiencies.............................................26

2.5 The Ability to Pay Principle.......................................27

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2.6 A Reconceptualised Burden-Sharing Principle (PI)...................29

2.7 Conclusion.........................................................31

3.0 Chapter Three: Dealing with Free-riders..............................33

3.1 A Global Collective Action Problem.................................34

3.2 A Rationale for Inducing Compliance................................35

3.3 Just Institutions..................................................37

3.4 The Power/Responsibility Dictum....................................40

3.5 The Compliance Principle (PII).....................................44

3.6 Conclusion.........................................................45

4.0 Chapter Four: Conclusion & Further Research..........................47

Bibliography.............................................................50

‘There exists a solidarity among men as human beings that makes each co-responsible for every wrong and every injustice in the world, especially forcrimes committed in his presence or with his knowledge. If I fail to do whateverI can to prevent them, I too am guilty.’1

1 Karl Jaspers, ‘The Question of German Guilt’, trans. E.B. Ashton (New York:Fordham University Press, [1947] 2001): 26. Cited in Simon Caney, ‘Two Kinds ofClimate Justice: Avoiding Harm and Sharing Burdens’, Forthcoming Journal of PoliticalPhilosophy 22 (3) (2014): 1.

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1.0 Chapter One: Introduction

The ethical gravity of climate change rests in its deleterious

effects on human wellbeing.2 Imagine a world where the effects of

climate change were felt instantaneously, and those that perpetrated

the global malaise were the ones to suffer its consequences.3 Action

to reduce, or even eliminate greenhouse gases (GHG) would be swift

and decisive.

Unfortunately that scenario does not reflect the world in which we

live. The climate challenge has a number of distinct features

including a 30-40 year lag between emissions and effects; an absence

of a world authority to enforce action; an atmospheric life of

carbon emissions of approximately 100 years,4 and a truly global

scale that none can avoid whether they participate in the climate’s

deterioration or not. These temporal and spatial dimensions mean

that no one state alone can achieve adequate GHG mitigation to

2 For details of the potential effects of climate change on human wellbeing see:IPCC, ‘The Fifth Assessment Report’, [Online] (2013)(http://www.ipcc.ch/report/ar5/wg1/). [Accessed 23 July 2014].3 Steven Hale, ‘Argument and Advocacy: Why are we Failing and How we will Succeed’,Environmental Politics 19 (2) (2010): 256.4 Steven Hale, ‘Argument and Advocacy: Why are we Failing and How we will Succeed’:256.

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stabilise the climate. Mitigation efforts require substantial

financial investment, and provide a more general global benefit over

the long-term. This means there is a very real risk that nations

will free-ride on the efforts of others, undermining the

effectiveness of mitigation efforts. Multilateral cooperation is

therefore essential to police free-riders, and gain sufficient

participation for an effective regime.

This crisis has not gone unnoticed. Pro-active actors like the

European Union (EU) have been pushing for a legally binding,

comprehensive multilateral agreement under the auspices of the

United Nations Framework Convention on Climate Change (UNFCCC) since

the organisation’s founding in 1992 (henceforth the global

agreement).5 This would certainly be the preferred option.6 However,

despite 25 years of these worthy aspirations, emissions are still

rising, and progress is depressingly slow. In fact, the only binding

treaty on GHG is the Kyoto Protocol (KP) which restricts only some

developed countries, covering less than 15 percent of global

emissions; even then to a modest target of 18 percent below 1990

levels.7 Clearly this is far from climate science’s estimate that all

global GHG need to be reduced by 80 percent by 2050, if dangerous

climate change is to be averted.8 Therefore, as an exercise of simple

logic, it is safe to say that efforts to mitigate climate change are

failing.

5 Louise Van Schaik & Simon Schunz, ‘Explaining EU Activism and Impact in GlobalPolitics: Is the Union a Norm- or Interest-Driven Actor?, JCMS 50 (1) (2012): 176.6 For an account of the potential benefits of a global agreement see: RobertFalkner, Hannes Stephan, John Vogler, ‘International Climate Policy afterCopenhagen: Towards a Building Blocks Approach’, Global Policy 1 (3) (2010): 254.7 This refers to the second KP commitment period 2012-20 initiated at Doha (COP18)8th December 2012. UNFCCC, ‘Kyoto Protocol’, (2014) [Online](http://unfccc.int/Kyotoprotocol/items/2830.php). [Accessed 31 August 2014].8 M. Parry, J. Palutikof, J. Hanson, J. Lowe, ‘Squaring up to Reality’, Nature ReportsClimate Change, 2 (2008): 1-3. Cited in Paul G. Harris, ‘China and Climate Justice:Moving Beyond Statism’, International Environmental Agreements, 13 (2013): 297.

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1.1 Dichotomous Notions of Climate Justice ‘Although all human societies have moral rules about food and sex, none has a moralrule about atmospheric chemistry.’ 9

At the heart of this failure are the dichotomous notions of

justice between the developed and developing world. Accordingly,

since the late 80s climate justice has moved beyond the academic

arena to become central to climate politics as governments have

sought mutually agreeable terms. However, negotiations have proved

that conflicting conceptions of justice can in themselves be a

source of contention.10

The Durban conference of parties (COP17: 2011) was the last major

attempt to forge a global agreement, culminating in the Durban

platform for enhanced action. This agreement lays the path for all

nations to take binding commitments to be agreed in 2015.11 There was

one notable omission from the Durban Platform: “common but

differentiated responsibilities” (CBDR), the core principle of the

UNFCCC. This principle was agreed in the early 90s and legally

solidified in the 1997 KP. It explicitly distinguishes between the

responsibilities of Annex one (developed), and non-Annex one

(developing) countries. The former to accept legally binding

targets, and the latter to prioritise economic and social

development and shoulder no binding mitigation duties (burden-

sharing duties).12 The principle’s instantiation can be found in

article one of the UNFCCC:

9 Daniel Gilbert, ‘If Only Gay Sex Caused Climate Change’, Los Angeles Times, [Online](2nd July 2006) (http://articles.latimes.com/2006/jul/02/opinion/op-gilbert2).[Accessed 23rd July 2014].10 Paul G. Harris, ‘China and Climate Justice: Moving Beyond Statism’, 296.11 Fiona Harvey & John Vidal, ‘Global Climate Change Treaty in Sight after DurbanBreakthrough’ The Guardian, (11 December 2011) [Online] (http://www.theguardian.com/environment/2011/ dec/11/global-climate-change-treaty-durban). [Accessed 9thSeptember 2014].12 Paul G. Harris, ‘China and Climate Justice: Moving Beyond Statism’, 297.

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‘The global nature of climate change calls for the widest possible cooperation by allcountries and their participation in an effective and appropriate internationalresponse, in accordance with their common but differentiated responsibilities andrespective capabilities and their social and economic conditions.’ 13

The United States’ (US) lead negotiator at Durban (Todd Stern)

neatly illustrated the US’ unwillingness to consider the inclusion

of a strict interpretation of CBDR in one short phrase: “if equity’s in,

we’re out”.14 The debate about equity and fairness at COP17 was simply

the most recent turn in the ongoing dichotomy over the application

of equity and fairness15 in burden-sharing duties.16 The US and other

developed countries maintain the position that they will not

participate in a global agreement that excludes any major emitters

from reciprocal commitments, not least of which China.17 The

developing world meanwhile relentlessly argues for their ideal

interpretation of CBDR. That is, that developed countries, having

contributed 52 percent of all GHG from 1850-2010 and comprising just

20 percent of the global population,18 must take responsibility for

their higher cumulative (historical) GHG. Moreover, they are simply

more capable of paying for mitigation efforts, and should take the

13 United Nations, ‘United Nations Framework Convention on Climate Change’, Article 1(1992) [Online](https://unfccc.int/essential_background/convention/background/items/1355).[Accessed 31 August 2014].14 United States Department of State, ‘United Nations Climate Change Conference inDurban, South Africa’, Special Briefing: Todd Stern, Special Envoy for Climate change (13th December2011) [Online] (www.state.gov/r/pa/prs/ps/2011/12/178699.htm). Cited in JonathanPickering, Steve Vanderheiden, Seumas Miller, “If Equity’s in, We’re Out”: Scopefor Fairness in the Next Global Climate Agreement’, Ethics and International Affairs, 26 (4)(2012): 423.15 Equity is often expressed in egalitarian terms. However, this paper uses the termsynonymously with fairness and justice.16 Jonathan Pickering, Steve Vanderheiden, Seumas Miller, “If Equity’s in, We’reOut”: Scope for Fairness in the Next Global Climate Agreement’, 423-4.17 Regan Doherty & Barbara Lewis, ‘Doha Climate Talks Throw Lifeline to KyotoProtocol’, Reuters (8 December 2012) [Online](http://www.reuters.com/article/2012/12/08/us-climate-talks-idUSBRE8B60QU20121208).[Accessed 31 March 2014].

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lead in mitigation efforts providing funding and technology for the

developing world based on these two realities. Consider this

statement by Chinese Premier Wen Jiabao at Copenhagen (2009) who

describes the developed world’s responsibilities in stark moral

terms: ‘it is an unshirkable moral responsibility as well as a legal obligation that they

[developed countries] must fulfil’.19

CBDR undoubtedly seemed logical and fair in the 90s as the

developing world’s contribution to the atmospheric stock of GHG was

relatively low. However, the last 20 years has seen a shift in

geopolitical power. Rapid economic growth in some highly populated

developing countries such as China and India is swelling the ranks

of the global affluent. This is leading to an expansion of the

global consumer class from a few hundred million in the 1980s to an

unprecedented estimate of 4.9 billion by 2030, 85 percent of whom

will reside in Asia.20 China alone now accounts for more than a

quarter of global emissions and two-thirds of the annual global

increase.21 The corollary is all non-OECD countries now account for

over 58 percent of global GHG emissions,22 and there are hundreds of

18 PBL Netherlands Environmental Assessment Agency, ‘Research Group Ecofys and theEuropean Commission's Joint Research Centre’. Cited in Reuters, ‘Emerging EconomiesNearing Half of Global Warming Emissions’, (31 October 2013) [Online](http://uk.reuters.com/article/2013/10/31/ climate-emissions-idUKL5N0IL47J20131031). [Accessed 5 January 2014].19 Wen J, Address at the Copenhagen Climate Change Summit, (Copenhagen, 18 December 2009).Cited in Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff, in Paul G.Harris (ed), China’s Responsibility for Climate Change, (Bristol: The Polity Press, 2011): 103.20 The new consumer class criteria is a four person household with a purchasingpower parity of more than $10,000, which is seen as the threshold where distinctlymiddle class purchasing patterns begin whereby people choose what to buy ratherthan being constrained by subsistence requirements. Kharas Homi, ‘The EmergingMiddle Class in Developing Countries’, OECD Development Centre Working Paper, 285 (2010).Cited in Paul Harris, What’s Wrong with Climate Politics and How to Fix It, (Cambridge: PolityPress, 2013): 110.21 Paul G. Harris, ‘Peace, Security and Global Climate Change: the Vital Role ofChina’, Global Change, Peace & Security, 23 (2) (2011): 143.22 British Petroleum, ‘BP Statistical Review of World Energy’, [Online] (2011)(www.bp.com/ statisticalreview.com). [Accessed 10th August 2014].

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millions of affluent consumers emitting free of binding restrictions

throughout the developing world. As long as this is the case, high-

emitters in the developed world, cash strapped from the financial

crisis, will struggle to convince their electorate to accept binding

restrictions as they watch their efforts dwarfed by the developing

world.

The new development at Durban means that whereas the US was

previously willing to accept differing notions of CBDR, the term now

seems to be synonymous with the developing world’s notions of

equity. In fact at Doha (COP18), developing nations re-affirmed

their pursuit of their ideal interpretation of CBDR,23 meaning its

complete exclusion from any future agreement is an unlikely

prospect. Lavanya Rajamani cautions about an abandonment of CBDR:

‘While the international regime can survive the erosion of certain limited forms ofdifferential treatment, a wholesale rejection of differential treatment, and of the“equity” concerns that animate it, would destabilize the normative core of the regime.’24

Equity then, is an essential part of any climate agreement.

Simultaneously it has resulted in a blame game between rich and poor

countries who show more interest in protecting their perceived

national interests than preventing the impending climate disaster;

even as GHG have exploded in recent years.25 An agreement that has

any chance of effectively reducing GHG to safe levels must address

this developed/developing world dichotomy.

23 Regan Doherty & Barbara Lewis, ‘Doha Climate Talks throw Lifeline to KyotoProtocol’.24 Lavanya Rajamani, ‘The Changing Fortunes of Differential Treatment in theEvolution of International Environmental Law’, International Affairs, 99 (2) (2012): 618.25 Paul G. Harris, Reconceptualising Global Governance, in John S. Dryzek, Richard B.Norgaard, David Shlosberg, (eds), The Oxford Handbook of Climate Change and Society, (Oxford:Oxford University Press, 2013): 641.

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1.2 Effectiveness vs. Fairness Fundamentally then, climate change negotiations need to address two

concerns. The first is to satisfy the normative core of the CCR by

differentiating burden-sharing duties between the rich and the poor,

and high and low-emitters. Without differentiation, the developing

world is unlikely to accept binding restrictions any time soon. The

second is the time critical need to reduce atmospheric GHG to safe

levels to prevent dangerous climate change that threatens human

wellbeing.26 These can be represented as fairness and effectiveness

respectively. Jonathan Pickering gives an illustrative definition of

both which suits the framework of this research.27

1) Effectiveness in the CCR requires a multilateral agreement that

includes a critical mass of major emitters from both rich and

poor states to achieve the necessary mitigation efforts to

prevent dangerous climate change.

2) Fairness in the CCR requires a distribution of benefits and

burdens founded on a criterion of impartial, non-arbitrary

treatment of persons and groups.

It could be argued that the Annex system in the KP is fair as it

limits duties to those states that have high historical

contributions to the atmospheric stock of GHG. However, the KP has

proved ineffective at mitigating climate change which raises

questions of intergenerational fairness as climate change threatens

the lives and wellbeing of billions of future global citizens.28 In a

time critical situation like climate change, ideal normative

standards of fairness like the developing world’s conception of CBDR

leads to compromises over effectiveness. These factors effectively26 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 110.27 Jonathan Pickering, Steve Vanderheiden, Seumas Miller, “If Equity’s in, We’reOut”: Scope for Fairness in the Next Global Climate Agreement’, 425.28 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 110.

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block a global agreement and instead provide an excuse for other

nations to avoid meaningful GHG cuts.29 This is demonstrated by

Japan, Russia, and Canada, all withdrawing from the second

commitment period of the KP, stating that they will not participate

in a global agreement that excludes major emitters in the developing

world from reciprocal commitments.30

Thus the CCR has become a blame game, where ethical and practical

arguments are wielded in a “you go first” regime of climate chicken.

All the while the world draws ever closer to the precipice

threatening the lives and wellbeing of current and future

generations.

Summary

What have we learned from this analysis? The developed world’s

desire for the abandonment of CBDR militates against a global

agreement. Secondly, the developing world’s pursuit of an ideal

conception of CBDR also militates against a global agreement. Due to

the voluntary nature of participation in a global agreement,31 three

constraints arise that must be addressed if a CCR is to be

effective:

1) Many developed nations (with the notable exception EU countries)

will not participate without reciprocal commitments from major

developing emitters.

2) Major developing economies will not accept contemporaneous

commitments with rich countries that fail to account for

differentiation of historical emissions and the capacity to pay.

29 Thomas Hale, ‘A Climate Coalition of the Willing’, 89.30 Regan Doherty & Barbara Lewis, ‘Doha Climate Talks throw Lifeline to KyotoProtocol’.31 Jonathan Pickering, Steve Vanderheiden, Seumas Miller, “If Equity’s in, We’reOut”: Scope for Fairness in the Next Global Climate Agreement’, 428.

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3) If a CCR is to be effective, it must obtain a critical mass of

global emitters by addressing point 1 and 2.

This dissertation addresses the debate over effectiveness and

fairness. Thus proposes that to be effective, the regime must be

perceived as fair. Ergo a middle road must be found, one that

accommodates the minimum conception of fairness32 necessary to garner

widespread participation. Moreover, the research recognises the need

for a principle that can garner sufficient compliance, owing to the

recognition that economic interests have a tendency to supplant the

interest of maintaining a stable climate. Few actors are likely to

subject themselves to the large costs inherent to climate change

mitigation without an incentive to do so. Certainly if solutions are

to be found, high-emitting individuals everywhere must eventually be

brought into a regime of binding restrictions. This dissertation

thus addresses the need for a radically different approach in the

CCR prompting the following question.

1.3 Research Question Can both effectiveness and fairness in the CCR be reconciled under

the tutelage of two forward-looking principles: first is a minimally

just burden-sharing duty founded on the duties of individuals;

second is a principle that legitimises the inducement of this burden

among non-compliers.

1.4 Main Argument This research takes the view that if a climate agreement is to be

fair, it must be based on the rights and duties of individuals. This

will become abundantly apparent in Chapter two when one starts to

32 A “minimal” account of justice embodies the critical justice architecturenecessary to protect basic human rights. The antonym is a “maximal” account ofjustice which denotes the ideal justice architecture. These are expanded on in theconceptual preliminary section below.

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consider how notions of climate justice that focus on states violate

the rights of individuals. However, for now, suffice to say that the

implicit theme of the dissertation is a cosmopolitanism one.

Cosmopolitanism posits that typically only individuals, not groups,

can be regarded as moral agents. To hold entire groups responsible

for the actions of some of its members violates this principle as

outcomes lie outside their control.33 Paul Harris states three core

principles a cosmopolitan CCR should adhere to:

1) ‘Equality of obligation (each person‘s obligations should be judged according touniversal criteria, rather than simply on the basis of national membership);

2) Equality of entitlement (each person’s entitlement to assistance should be judgedaccording to universal criteria that do not vary with nationality).

3) Universality (principles that govern international obligation should be consistent withthose implemented domestically).’ 34

Therefore we can modify the conception of fairness to: non-

arbitrary and universal treatment of the duty-bearer (equality of

obligation for burden-sharing duties) and the rights-bearer

(equality of entitlement not to be harmed by human rights violating

climate change perpetrated by others) of individuals’. This holds

regardless of the borders one resides within.

This dissertation takes the view that the deadlock in climate

politics can (in part) be bridged by correcting two fundamental

flaws in the ethical architecture of CBDR that better approximate

fairness among individuals. Firstly, that CBDR focuses on

differentiation between states. No regime can be truly just while

high-income, high-emitting individuals are able to consume freely

behind a shield of poverty, fortified by others in their nation.

There are hundreds of millions of middle-class consumers in the

33 Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change, (Oxford: OxfordUniversity Press, 2008): 166.34 Paul Harris & Jonathan Symons, ‘Justice in Adaptation to Climate Change:Cosmopolitan Implications for International Institutions’, Environmental Politics, 19 (4)(2010): 627.

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developing world living high-carbon lifestyles; the continuing high

emissions of individuals in rich countries does not negate this

reality. This is not to excuse consumers in the developed world of

responsibility, but to address the imperative of preventing human

rights violating climate change by modifying the ethical

architecture to differentiate between the emissions of all global

individuals.

The second flaw is the developing world’s ideal (maximal)

conception of CBDR as a dictum for the culpability of historical

emissions. And indeed the developed world’s (especially the US’)

calls for its complete abandonment. Prioritising fairness or

effectiveness leads to either negotiating deadlock, or compromises

of effectiveness exemplified by the KP.35 Moreover, the immense

complexities (both empirical and ethical) in calculating historical

responsibilities can in fact lead to injustices: not only through

the resulting climate impacts from failed global agreements, but

also from miss-assigned mitigation burdens within states (see

Chp.2). For example, why should a low-emitting poor person in the UK

be subjected to restrictions based on the historical emissions of

excusably ignorant others, perhaps long dead? All whilst a

billionaire in China consumes freely.

A third dimension is also needed: that the CCR is subject to the

free-rider problem (see Chp.3). Accordingly any justice framework

that might serve as an underpinning for an effective CCR must

include a principle for inducing compliance to garner a critical

mass of participation in burden-sharing duties.

This research thus proposes a shift of thinking in the ethical

architecture of the CCR, by developing two forward-looking

principles that might serve as an ethical underpinning for a more

effective CCR. The first addresses the need to correct the flaws in

35 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 110.

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CBDR. The second addresses the free-rider problem. It will be argued

that both combined could propagate a fair and effective CCR.

Principle One (burden-sharing principle: PI) illustrates how a

minimal account of justice based on the duties of individuals could

bridge the dichotomous interests inherent in the “battles” over

fairness. In doing so, PI satisfies the terms of fairness, and casts

the burden-sharing net wide enough to satisfy effectiveness. The

analysis finds historical responsibilities to be an unjust hindrance

to an effective CCR. Therefore PI is forward-looking, and is based

on a hybrid of individuals’ ability to pay, and culpability for

present GHG. As such the principle incorporates all the world’s

affluent emitters, wherever they may reside. In doing so this

principle adheres to the normative core of the CCR by

differentiating between wealth and culpability.

Principle Two (the compliance principle: PII) works backwards from

the imperative of preventing catastrophic climate destabilisation.

And addresses the need for inducing compliance among free-riders if

a CCR is to be effective. The lack of political will among major

emitters is a key obstacle; that said, long-term international

cooperation needs willing partners, and although cosmopolitan

solutions may sound somewhat utopian, climate change mitigation must

be a collective endeavour.36 As Haydon states:

‘Cosmopolitanism is not inherently opposed to the state per se...rathercosmopolitanism is generally concerned to develop varied modes of governance-fromthe local to the global-with the goal of facilitating the rights and interests of individualsqua human beings.’ 37

The International Criminal Court (ICC) is an analogous example of

how cosmopolitan norms can be operationalized through an36 Derek Bell, ‘Climate Duties, Human Rights and Historical Emissions’, in Paul G. Harris (ed),China’s Responsibility for Climate Change, 31.37 Patrick Haydon, Cosmopolitan Global Politics, (Aldershot: Ashgate Publishing, 2005): 21.

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institutional actor. The ICC’s essential mandate is to implement a

cosmopolitan principle in the universal punishment of crimes against

humanity. Further, while responsibilities of ICC provisions fall on

states, supranational aspects of jurisdiction apply when states fail

to uphold these provisions.38 PII thus proposes a duty to promote

just institutions that garner compliance with PI, assigning

different responsibilities to different actors depending on their

power to affect the CCR. For example President Obama has a greater

responsibility than an Indian farmer owing to his greater capacity

to influence the CCR. PII thus assigns duties to uphold the

universal entitlements of victims of climate change by inducing

compliance of the world’s affluent emitters. Consequently the

research question can be disaggregated into four objectives.

1.5 The Aims and Scope of this Dissertation 1) To analyse the core ethical argument of CBDR touted by much of

the developing world in its constituent theoretical

manifestations: the polluter pays principle (PPP), the

beneficiary pays principle (BPP), and the ability to pay

principle (ATP) (Chp.2).39

2) To propose PI which approximates a minimal account of justice

that might be perceived fair, as such garner the participation

needed for the effective mitigation of climate change (Chp.2).

38 Paul Harris, Jonathan Symons, ‘Justice in Adaptation to Climate Change:Cosmopolitan Implications for International Institutions’, 627.39 These are explored in detail in chapter two. However simply stated PPP is abackward-looking principle that means those that have polluted are duty-bound topay for the resulting harm of that pollution. BPP is also backward-looking, andstates that actors are liable for the costs of harmful pollution as they are thebeneficiaries of the fossil fuel development from which the emissions came. ATP isa forward-looking principle that states that those that can afford to pay formitigation have a duty to do so.

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3) To explicate the prolific incentive to free-ride in the CCR and

offer a normative rationale for inducing compliance with PI

(Chp.3).

4) To develop PII which assigns duties to promote just institutions

that induce compliance among free-riders with PI. This addresses

the imperative of obtaining the critical mass of participation

needed for an effective CCR (Chp.3)

1.6 The Relevance of the Research As has been made clear in this dissertation, if a new paradigm is to

shake up the existing policy monopoly, fundamentally climate justice

must be included in the debate. The research strategy however, will

be to ground the ethical principles in the empirical practicalities

of implementing cosmopolitan norms. Essentially then, the

distinctiveness of this research lies in its attempt to reconcile

effectiveness and fairness through the construction of the two

principles. Each section explores and critiques the relevant

literature thus it is not necessary to carry out an independent

literature review. However, in order to identify the research space

this dissertation occupies it is useful to illustrate some key

(although certainly not exhaustive) differences in the research. The

research differs on its comprehensive inclusion of three fundamental

points:

1) It discounts historical responsibility, and the ability to pay

principle for practical reasons that are shown to alter the

moral calculus (Chp.2).

2) It takes the position that a notion of fairness in the CCR must

assign moral agency to individuals (cosmopolitanism).

3) It addresses the need to induce compliance among free-riders.

Accounting for the reality that if cosmopolitan norms are to be

implemented, the role of institutions is vital (Chp.3)

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Henry Shue, Eric Neumayer, Jonathan Pickering, Simon Caney, Derek

Bell, Edward Page.40 These climate justice scholars propose ethical

conceptions of burden-sharing principles, but do not give sufficient

credence to effectiveness. Whether they take a statist perspective

like Shue or Neumayer, or a cosmopolitan one like Caney or Page,

they are all apologists for historical responsibility or a

derivative thereof. The inclusion of historical responsibility is

politically infeasible due to the enormous costs this would impose

on developed countries. Further, to base a burden-sharing principle

on either states and/or historical responsibility risks human rights

violating miss-assignments of duties (Chp.2). This dissertation

classifies these theories as maximal accounts. That is, that they

represent ideal moral arguments which although interesting and

relevant, run into the practical complexities of calculating

historical accountability. Who can truly fathom with any degree of

accuracy how much of an individual’s wealth is derived from fossil

fuelled development? Who has been harmed by climate, by how much,

and by whom (Chp.2)?

Paul Harris41 is the scholar most in tune with this dissertation.

Harris directly addresses the failings of statist conceptions of

justice by modifying CBDR to account for individuals not states.40 Henry Shue, ‘Global Environment and International Inequality’, in StephenGardiner, Simon Caney, Dale Jameson, Henry Shue (eds), Climate Ethics: Essential Readings,(New York: Oxford University Press, 2010):104.Eric Neumayer, ‘In Defense of Historical Accountability for Greenhouse GasEmissions’, Ecological Economics, 33 (2000): 185-92.Jonathan Pickering, Steve Vanderheiden, Seumas Miller, “If Equity’s in, We’re Out”:Scope for Fairness in the Next Global Climate Agreement’, 423-43.Simon Caney, ‘Climate Change and the Duties of the Advantaged’, Critical Review ofInternational Social and Political Philosophy, 13 (1) (2010): 203-28.Edward Page, ‘Give it up for Climate Change: a Defence of the Beneficiary PaysPrinciple’, International Theory, 4 (2) (2012): 300-30.Derek Bell, ‘Global Climate Justice, Historical Emissions, and ExcusableIgnorance’, The Monist, 94 (3) (2011): 391-411.41 Paul G. Harris, What’s Wrong with Climate Politics and How to Fix It.

20

While this principle is fundamental to the approach of this

dissertation, Harris’s solution to the impasse is China taking the

lead. In doing so emitters in the developed world will (according to

Harris) be both morally and politically compelled to bear their fair

share of burden-sharing duties. While this certainly addresses

aspects of fairness, Harris fails to address the very likely reality

that global emitters (including China) will fail to comply with such

a principle, no matter how reasonable it is (Chp.3).

1.7 Research Methodology The very nature of climate justice brings to light ontological value

judgements about right and wrong. For example, Shue states that it

is right to be held financially liable for human rights violating

historical emissions, even when excusably ignorant, but it is wrong

to be punished for those same emissions.42 However, he offers no

epistemological justification for how he locates this truth; what

are the systemic mechanisms for its determination? This research is

no different in the fact that value judgements must be made if the

rather broad notion of fairness is to be incorporated in the two

principles. The difference here lies in the pre-eminence of the

research question in the research philosophy.43 Thus this research is

concerned with developing solutions to the dichotomous notions of

fairness and effectiveness. In doing so it rejects a choice between

positivism and interpretivism (first and second criteria: see Powell

quote below) with regard to epistemology and logic. Instead it

accepts the reality that no matter how compelling a moral argument,

it does not alter the practical constraints of achieving an

effective CCR.

42 Henry Shue, ‘Global Environment and International Inequality’, 104.43 For an account of pragmatic research philosophy see: Mark Saunders, Philip Lewis,Adrian Thornhill, Research Methods for Business Students (Edinburgh: Pearson EducationLimited, 2007): 135.

21

In order to achieve fairness and effectiveness then, the logic and

ethical standing of the key principles in the climate justice

literature are analysed using empirical realities, or practicalities

if you will, as a touchstone to ground the normative values.

Therefore there is no rudimentary difference between the practical

and ethical reasoning in the development of the two principles. Good

principles are those that show potential for practical application

in the CCR. The research then, adopts a pragmatic philosophical

approach. Thomas Powell neatly illustrates this approach:

‘The pragmatist proposes to reorient the assessment of theories around a thirdcriterion: the theory’s capacity to solve human problems. To a pragmatist, the mandateof science is not to find truth or reality, the existence of which are perpetually indispute, but to facilitate human problem-solving.’ 44

The fundamental approach is to generalise the dichotomous notions

of justice in the developing/developed world that hinder an

effective regime. That said, while not addressed explicitly as a

case study, this dissertation will utilize China as a key conceptual

illustration as it raises a prototypical challenge to the

traditional dichotomy of fairness in the CCR for two key reasons:

the first because of its large swathes of poverty, as a victim of

the historical contributions of the developed world. The Second, as

a perpetrator as the world’s biggest emitter with continuing high

emissions’ growth buoyed by the exponential rise of its high-

emitting middle-classes.45 Certainly, if the world is to have any

chance of effectively stabilising the climate, China is a central

issue.

This dissertation is a derivative theoretical approach that

incorporates and modifies (where appropriate) key ethical

44 Thomas C. Powell, ‘Competitive Advantage: Logical and PhilosophicalConsiderations’, Strategic Management Journal, 22 (9) (2001): 884. 45 Olivia Bina, Responsibility for Emissions and Aspirations for Development, in Paul G. Harris(ed), China’s Responsibility for Climate Change, 47.

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conceptions widely discussed in climate change academia. Therefore

the research is qualitative by definition, utilizing secondary

sources of data to draw on current thinking within the respective

disciplines. These will predominantly be composed of peer reviewed

journals and academic books. That being said, practical examples of

climate change effects, emissions data, and human rights violating

scenarios are important to critique and substantiate the normative

principles. This is achieved by utilizing newspaper articles such as

the Guardian, and primary documents from key internet resources such

as the IPCC, the EU commission, and the UN.

1.8 A Conceptual Preliminary: The “Decent Living” Threshold The ethical gravity of climate change rests in its impacts on the

lives and wellbeing of individuals. Thus the question of “what do we

want to protect?” needs to be addressed.

It is necessary to distinguish between maximal and minimal

accounts of justice.46 A maximal account would embody the perfect

moral agreement, in the context of this dissertation: the developing

world’s argument for a strict moral interpretation of CBDR.47 A

minimal account seeks to establish the lowest common denominator of

justice essential to garner widespread participation. In doing so,

satisfying the terms of fairness and effectiveness by protecting

human rights violations. These violations are shown to stem from

both the resulting climate impacts from failed agreements, and

potential misallocations of overly burdensome mitigation duties.

Of course human rights are arbitrary. As such this dissertation

does not purport to examine the extent to which human rights should

46 These terms are adapted from Rainer Forst who used them in a slightly differentcontext; although they are utilized here as a useful conceptualisation for thescale of justice needed; or indeed called for in the CCR. Rainer Forst, ‘Towards aCritical Theory of Transnational Justice’, Metaphilosophy 32 (1/2) (2001): 172.47 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 103.

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be protected, but utilizes Rao and Baer’s48 conceptual framework of

“decent living emissions”. The framework quantifies the minimal

basket of consumption goods necessary for what they call a “decent

life for all”, and the emissions required to achieve this goal.

These consist of ten consumption categories: food, shelter, safe

water and sanitation, health care, education, transportation,

clothing, refrigeration, television and mobile phones. Moreover;

these rights are strictly universal as the purpose is to defend

rights common to all persons.49

The decent-living criteria is utilized in this dissertation as a

threshold exemption that global citizens have a negative right not

to be forced beneath by either dangerous climate change, or overly

burdensome mitigation duties. Therefore a just CCR first and

foremost must assign burdens in a way that is best suited to

protecting this right.

1.9 Organisation of Dissertation Chapter two lays bare the ethical inconsistencies in the calls for a

maximal interpretation for CBDR. It achieves this by analysing the

principle in its constituent theoretical manifestations: PPP, BPP,

ATP. The chapter then formulates PI, which is a forward-looking

principle based on current emissions and wealth which accounts for

the practical complexities of formulating ethical principles.

Chapter three illustrates climate change as a global collective

action problem (CAP) demonstrating how the regime is subject to the

free-rider problem. It further offers a normative rationale for

inducing compliance with PI and formulates PII. This principle

demonstrates how those that have the power to do so, have a

48 Narashima, D. Rao & Paul Baer, “Decent Living” Emissions: A ConceptualFramework’, Sustainability, 4 (2012): 656-81.49 Tim Hayward, Constitutional Environmental Rights. Cited in Steve Vanderheiden, AtmosphericJustice: A Political Theory of Climate Change, 241.

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responsibility to promote just institutions that might induce

compliance with mitigation duties. Chapter four concludes and makes

some suggestions for further research as to how the principles could

be operationalized.

2.0 Chapter Two: Historical Responsibility & the Duty

to Pay

This chapter considers the ethical rationales postulated for the

maximal account that form the UNFCCC’s principle of CBDR. Derek Bell

postulates that this standard is actually a hybrid, and can be

broken down into three principles.50 Firstly, it establishes the

common responsibility of all states to protect the global

environment through global cooperation (this principle is tackled in

Chp.3). Secondly, differentiated responsibilities refer to the

greater historical contribution of the developed world; this is

substantiated in the preamble of the convention which states that ‘the

largest share of historical and current global emissions of greenhouse gases has originated

in developed countries’.51 Thus developed countries are duty-bound to bear

the costs of climate change. Thirdly, their respective capabilities

refers to the fact that wealthy countries are simply more able to

pay due to greater economic resources, and should absorb mitigation

costs based on this ability. In the climate justice literature, the

second and third principles manifest as PPP and ATP respectively.

PPP is further disaggregated into the BPP.

These principles are critiqued to illustrate how the historical

arguments developing countries espouse to resist affirmative action

on climate change are based on faulty logic. Each is analysed in

50 Derek Bell, ‘Global Climate Justice, Historical Emissions, and ExcusableIgnorance’, 391.51 United Nations, United Nations Framework Convention on Climate Change, 391.

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turn before formulating a forward-looking principle (PI) based on a

conjunctive account of the ATP and PPP that approximates a minimal

account of justice. Thus the dissertation arrives at the first

objective of the research question.

2.1 The Polluter Pays Principle Simply stated, PPP is a backward-looking principle that states: if

you pollute the atmosphere, you are morally culpable to pay for the

harm that ensues from the resulting climate change.52 The notion

itself has intuitive appeal and is advocated by many developing

nations, inasmuch as one would reasonably assume that an actor is

duty bound to pay for the resulting harm of her actions.53 The

problem is the historical dimension: if your grandfather murdered

someone in 1920, and the case was only proved today, 20 years after

your grandfather’s death, is he culpable for his crime? The answer

is a resounding yes; murder was as legally prohibited and as

socially accepted as morally wrong then, as it is today (it is time

neutral).54 However, as the descendent of the murderer, are you

culpable for his actions? The answer is a resounding no, despite the

moral and legal aspects being time neutral, you did not have a

choice in his actions and should not be held responsible.

Now consider climate change: if your grandfather emitted GHG that

contributed to climate change that has or will cause harm to persons

and peoples, are they culpable despite having had no knowledge of

the harmful effects of their actions at the time? There was no IPCC

and no prohibiting law or socially unacceptable norm informing his

decisions; in short, emitting GHG is “time relative” in that the

52 Simon Caney, ‘Climate Change and the Duties of the Advantaged’, 203. 53 Simon Caney, ‘Climate Change and the Duties of the Advantaged’, 205-6.54 Simply stated, if something is time neutral, social conceptions have not alteredsignificantly i.e. perfect information obtains in the moral and legal implicationsof murder. Derek Bell, ‘Global Climate Justice, Historical Emissions, and ExcusableIgnorance’, 402.

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available information at the time means they were “excusably

ignorant” of the effects of that pollution and should not be duty-

bound to pay the associated costs. In this circumstance it might be

reasonable to assume that people are only culpable for their

emissions after 1990 (the year of the first IPCC report)55 when the

public became largely aware of the dangers of GHG.

Henry Shue is an advocate of historical responsibility. He argues

that while excusable ignorance mitigates one’s liability for

punishment, if people’s actions resulted in the interests of others

being jeopardized they are liable for the full costs of those

actions, even when excusably ignorant.56 Fundamentally he bases this

on equality:

‘In order to be justifiable, an inequality in something between two or more partiesmust be compatible with an equality of dignity and respect between the parties...if Isaid to you, “I broke it, but I want you to clean it up”, then I would be your master andyou would be my servant.’ 57

If person A pollutes the atmosphere, and expects person B to clear

it up, this is a violation of the premise of equal respect and

dignity. Why though, does financial responsibility accrue to the

duty-bearer (the bearer of the mitigation duty) who might proclaim

excusable ignorance of the effects of their actions when they are

not culpable for punishment? This sort of retrospective justice

seems unjust,58 especially when we consider the complexity of

assigning that responsibility to the descendent of a polluter: which

individual acquires that duty? We would need a collective55 IPCC, ‘Climate Change: The IPCC Scientific Assessment’, (1990) [Online](https://www.ipcc.ch/publications_and_data/publications_ipcc_first_assessment_1990_wg1.shtml).[Accessed 26th August 2014].56 Henry Shue, ‘Global Environment and International Inequality’, 104.57 Henry Shue, ‘Global Environment and International Inequality’, 103-5.58 Simon Caney, Cosmopolitan Justice, Responsibility, and Global Climate Change, in StephenGardiner, Simon Caney, Dale Jameson, Henry Shue (eds), Climate Ethics: Essential Readings,131.

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responsibility theory for states, and as will be shown, to hold

states responsible risks violating the rights of individuals within

states, potentially asking too much of the duty-bearer. Surely this

risks violating the premise of equal respect and dignity as it

prioritizes the rights of the rights-bearers (the victim of climate

change) over the duty-bearers? Any compelling theory of justice must

accommodate the non-arbitrary, universal treatment of both.59 Thus

Shue fails to incorporate the premise of universal rights. As such,

the only justification for historical responsibility that has any

traction transpires when we consider the beneficiary problem.

2.2 The Beneficiary Pays Principle The focus of BPP changes the relationship from the victim and the

perpetrator, to the victim and the beneficiary. BPP states that

current generations are liable for the full costs incurred as the

‘benefits and costs, and rights and responsibilities, carry across generations.’ 60 Edward

Page is a staunch advocate of BPP. He argues that 200 years of

fossil-fuelled development in the developed world designates current

generations in those states as the beneficiaries of GHG producing

industrial activity as they enjoy the fruits of industrialised

society. Accordingly they should incur the full costs of the

resulting damages, as they have benefitted from acts that cause harm

to others.61

While the principle of liability for the benefits of harmful acts

appeals to most people’s conception of justice (one would imagine),

objection can be raised on the size of the benefits. Why should

someone be liable for potentially massive costs if they have59 Simon Caney, ‘Climate Change and the Duties of the Advantaged’, 209.60 Henry Shue, ‘Global Environment and International Inequality’, 105.61 Edward Page, ‘Climate Justice and the Fair Distribution of Atmospheric Burdens: AConjunctive Account’, The Monist, 94 (3) (2011): 421. For a spirited defence of the beneficiary pays principle, see Edward Page, ‘Give itup for Climate Change: a Defence of the Beneficiary Pays Principle’.

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benefited only slightly?62 Furthermore, it is also necessary to

consider the capacity of the duty-bearer to remit those benefits.

Suppose the duty-bearer is someone living in relative poverty in the

UK, should she be liable for the full costs of the right-bearer

harmed by rising sea levels in Bangladesh? It is plausible to hold

someone to account for benefits derived from a harmful act, but it

is implausible to hold someone to account for their, or an

ancestor’s excusably ignorant actions if forgoing those benefits

would push that person below the decent-living threshold. It is easy

to assume that BPP is synonymous with making the affluent pay;

however the correlation between high historical emissions and wealth

is not perfect, it may mitigate the harm of some by perpetuating the

poverty of others.63

Bell is an apologist for a limited-liability approach to BPP which

offers a solution to the problem of the size of the remittance. He

suggests that as a moral agent, an actor’s judgements should be

based on her conception of right and wrong. Based on information

available to her at the time of the act she is excusably ignorant;

however, based on current available information, she can judge her

act, or indeed the act of an ancestor, as wrong (it is time

relative).64 Therefore her notions of right and wrong should give

rise to regret for those actions, and specifically she should not

want to retain benefits from those wrongful acts.65 Consequently, her

liability is restricted to the extent of the benefits derived from

the harmful act, which should be remitted to the victim to rectify

the harm caused.

62 Derek Bell, ‘Global Climate Justice, Historical Emissions, and ExcusableIgnorance’, 407.63 Simon Caney, ‘Climate Change and the Duties of the Advantaged’, 212.64 Derek Bell, ‘Global Climate Justice, Historical Emissions, and ExcusableIgnorance’, 402.65 Derek Bell, ‘Global Climate Justice, Historical Emissions, and ExcusableIgnorance’, 403.

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Bell’s limited-liability approach is a compelling argument,

especially if one stipulates that the principle excludes those

beneath the decent-living threshold. With this stipulation it seems

to solve the ethical conundrums of historical culpability for GHG by

assigning rights universally. That is, that the right-bearer has the

negative right not to be harmed by acts that have benefited others.

And the duty-bearer has the positive duty to remit those benefits to

the right-bearer. However, the concept stumbles when one considers

the inherent practical complexities of calculating any version of

historical responsibility: who or what, has caused how much harm to

whom?

2.3 Practicality Concerns for Historical Responsibility Consider four practicality constraints:

Culpability for GHG: if one adopts a statist approach, there are

practical complications in what Edward Page calls the “disappearing-

perpetrators problem”.66 This holds that the continuity of states’

identity has broken down over time: boundary changes, secessions,

wars, migration, and political events have all contributed to

institutional change in the character of states. Thus holding a

collective responsible becomes problematic as what constitutes that

collective may be completely different from 150 years ago. The

breakdown of the USSR is an obvious example. Now consider how much

more complex calculating individuals’ responsibilities for GHG

become. For example, if someone lives the first 20 years of their

life in Bangladesh, and then moves to Britain, what proportion of

Britain’s historical emissions is she responsible for? When do

responsibilities ensue, at 18 once she becomes an adult? When

citizenship is gained?

66 Edward Page, ‘Climate Justice and the Fair Distribution of Atmospheric Burdens: AConjunctive Account’, 415.

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Accrued benefits: now consider calculating what proportion of a

states development is GHG derived, and what proportion is non-GHG

derived. Consequently, what benefits accrued to that same

Bangladeshi from GHG development and what benefits accrued from non-

GHG development? Both from her time in Bangladesh and Britain. If

such a distinction cannot be made, and it seems only logical that it

would not, to any degree of accuracy in any case, then it will be

impossible to distinguish what proportion of wealth the duty-bearer

is bound to remit to the victim. Furthermore, assume that

Bangladeshi remits a portion of her wealth in Britain to her family

in Bangladesh, are members of that family not now beneficiaries of

Britain’s historical emissions? The empirical complexities are

enormous.

The origins of climate change: a group of researchers from the US

and China found that the Three Gorges Dam (the largest in the world)

situated on the Yangtze River in China has environmental impacts on

two significant fronts: it has increased rainfall north of the dam

up to 100km away, and decreased rainfall south of the dam. Second,

land reclamation for agriculture and water storage for electricity

generation contributed to two huge fresh water lakes Dongting and

Poyang, drying up in the debilitating drought of 2011. This affected

the lives of countless fishermen that rely on the lake for their

livelihood.67 Who is responsible for this? The Chinese government for

building the dam which exacerbated the drought? Or perhaps the

historic emissions of the US for their contribution to climate

change that may have contributed to the drought? While the science

continues to improve, the intricacies of calculating climate change

origins are problematic. Even the projections of temperature and sea

67 International Rivers, ‘How Dams Can Bring About Rainfalls and Drought’, (8th June2011) [Online]. (http://www.internationalrivers.org/resources/how-dams-can-bring-about-rainfalls-and-drought-3398). [Accessed 12 August 2014].

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level rises by the IPCC are based on probabilities ranging from 5-95

percent certainty.68 Therefore, in order to ascertain what costs lie

with whom, we must first ascertain how much of the harm is due to

climate change, then calculate which actors contributed what

percentage of GHG. This data becomes less reliable the further

through time we descend.

The victims: take Hurricane Katrina for example: the rich of New

Orleans suffered relatively little while many of the poor suffered

greatly.69 In fact 55 percent of those evacuated did not own a car,

68 percent had neither a useable credit card nor cash in the bank,

and those left behind were disproportionately poor and elderly, the

latter accounting for 40 percent of the 1,833 deaths.70 Ergo, while

the poor in the developing world are certainly more vulnerable to

climate change, by taking a state-based strategy we discount the

suffering of those poor who live in predominantly affluent

countries, who may actually be required to remit compensation to

poor countries as the “beneficiaries” of historical GHG.

2.4 Maximal Inefficiencies While at first glance one could posit that practical concerns are

irrelevant to the moral calculus, they do in fact alter it. Assume a

poor person that suffered in New Orleans: if we take a state based

perspective, that person may well be expected to pay for a

proportion of the pollution from which she has not benefited

greatly, has not caused, and may have suffered greatly under the

68 IPCC, ‘The Fifth Assessment Report’.69 Hemann E. Ott, Wolfgang Sachs, ‘The Ethics of International Emissions Trading’,(2002). Cited in Paul G. Harris, World Ethics and Climate Change: From International to GlobalJustice, (Edinburgh: Edinburgh University Press, 2010): 143.70 Caroline Heldman, ‘Hurricane Katrina and the Demographics of Death’, The SocietyPages (29th August 2011) [Online](http://thesocietypages.org/socimages/2011/08/29/hurricane-katrina-and-the-demographics-of-death/). [Accessed 13 August 2014].

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resulting climate impacts. Those duties thus impose additional

suffering on that person and as the old proverb affirms “two wrongs

do not make a right”.

It may seem unreasonable to discount historical emissions,

especially given their pivotal role in the developing world’s notion

of a fair CCR. Although even when one considers the most plausible

ethical solution in the limited-liability for the beneficiaries

based on individuals, to gauge an individual’s benefits derived from

GHG development is problematic. Thus to hold individuals or indeed

states to account for historical emissions by estimating the

culpability of the harm-causing emissions, the degree of benefits

derived from those emissions, the origins of climate change, and who

has caused what harm to whom, are simply too great. The further back

we traverse the historical responsibility argument, the greater

those empirical complexities become.

In consequence the practical complexities of calculating

historical responsibility for GHG emissions rules out its inclusion

in a non-arbitrary, universal application of fairness in the CCR.

The probabilities of causing harm by incorporating historical

emissions are simply too great. Further they make participation from

the developed world unlikely. For example, China is not estimated to

accumulate historical emissions equivalent to the US’ until 2030.71

This means that the vast majority of mitigation costs under a

historical emissions principle accrue to the developed world. As

demonstrated in the introduction, this negates the probability of

compliance from high historical emitters in rich countries (like the

US). Therefore the historical element of a maximal CBDR violates our

conception of fairness and effectiveness.

71 Paul Baer, Tom Athanasiou, Sivan Kartha, Eric Kemp-Benedict, ‘GreenhouseDevelopment Rights: A Proposal for a Fair Global Climate Treaty’, Ethics, Place andEnvironment, 12 (3) (2009): 272.

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2.5 The Ability to Pay Principle Some theorists have proposed the ATP (Caney, Miller).72 This is a

forward-looking principle which posits that a state’s duties are

directly proportional to its wealth and unconcerned with causality.

Consequently, those duties increase with wealth, regardless of past

or current emissions.73 This is a derivative of Peter Singer’s

analogy which neatly illustrates the duty:

‘Suppose that one encounters a child face down in a puddle. The fact that one did notpush the child in obviously does not mean that one does not have a duty to aid thechild.’ 74

Likewise if one can pay for climate change mitigation that will

reduce or prevent the harm of millions, one is similarly obligated

to do so. This theory is fortified when one considers the notion: if

someone must bear the duties, and the burden of guilt lies on

neither, when choosing between the rich and poor, the rich’s

opportunity cost is much less likely to sacrifice their decent-

living capabilities. Hence they have less cause for complaint and

should shoulder the costs.75 This account seems promising at a glance

as it circumvents the historical complexities that plague the CCR.

However there are a number of ethical conundrums embroiled within

the principle.

1. Miss-assigned duties : if ATP is operationalized at state level,

this rewards countries like China and India that have huge

wealth inequalities; thus allowing rich emitters to hide behind

72 Simon Caney, ‘Climate Change and the Duties of the Advantaged’, 203-28.D. Miller, Global Justice and Climate Change: How Should Responsibilities be Distributed?, in G.Peterson (ed), The Tanner Lectures on Human Values, (Salt Lake City: The University of UtahPress: 2009): 119-56.73 Edward Page, ‘Climate Justice and the Fair Distribution of Atmospheric Burdens: AConjunctive Account’, 418.74 Peter Singer, Famine, Affluence, and Morality (1972). Cited in Simon Caney, ‘CosmopolitanJustice, Responsibility, and Global Climate Change’, 136.75 Simon Caney, ‘Climate Change and the Duties of the Advantaged’, 214.

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the low emissions of the poor in their country.76 This could see

a miss-allocation of duties as poor people in rich countries end

up paying to mitigate the emissions of rich people in poor

countries. Arguably this exacerbates inequalities among the

global rich and poor.

2. Diminished responsibility : if actor A destroys your car, she is

obligated to repair the damage, at least. This duty does not

depend on your ability to repair the car. ATP states that if you

are more able to repair the car, the duty lies with you. In this

scenario the guilty party is not held to account for their harm-

causing actions, just as a high-emitter would not be held to

account for their harm-causing emissions.

3. Diminished incentives : ATP diminishes incentives in two

dimensions: it discounts environmental efforts potentially

disincentivising sustainable development by rich countries as

they would nonetheless incur the same costs as irresponsible

rich states. Second, it diminishes the incentive of high-

emitting poor states to take mitigation action as rich states

will absorb all the mitigation costs. ATP then sends out all the

wrong signals. In order to forge an effective CCR, pro-active

environmental actors are of principle importance and should not

be liable based solely on their wealth.

An ATP based on states is unlikely to be accepted by the developed

world as it exonerates high-emitting developing countries like China

and places the vast majority of burdens on rich countries. As such

this fails to meet the need to achieve a critical mass for an

effective regime. Furthermore its propensity to arbitrarily assign

duties within states means poor individuals in rich countries will

incur undue burdens that may threaten their right to decent-living.

This violates the need for fairness among all global citizens. These76 Paul G. Harris, ‘China and Climate Justice: Moving Beyond Statism’, 295.

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dimensions hold even when ATP is applied to individuals: all

individuals have a duty to pay for climate change mitigation

according to their wealth. The failure to hold individuals to

account for their high-emissions risks assigning undue burdens on

those environmentally-responsible actors, and lets the guilty

emitters off the hook. This is intuitively wrong. Thus we can say

that a version of ATP for individuals suits the criteria for

fairness by assigning burdens non-arbitrarily based on its universal

application of the wealth criterion (providing a universal wealth

threshold is applied). However, it is arbitrary in its treatment of

culpability for high emissions. Moreover, by disincentivising

sustainable development among rich and poor emitters alike, ATP

works against the need to garner widespread participation.

Consequently these conceptions of ATP fail to meet the criteria of

fairness and effectiveness.

2.6 A Reconceptualised Burden-Sharing Principle (PI) Despite the arguments raised against ATP, the universal wealth

criterion suits the fairness dimension and can be incorporated in a

minimally just burden-sharing principle. This is achieved here in a

conjunctive account with a purer version of PPP that accounts for

the culpability of individuals’ high emissions. Therefore the second

objective of the research question is addressed by proposing a

minimally just burden-sharing duty, founded on the following

stipulations.

1) A universal application of the culpability for high-emitting

individuals: if X emits harm-causing GHG, then X pays for the

harm caused to Y from those emissions. This is akin to a purer

version of PPP that bypasses the historical dimension therein

the empirical complexities inherent to historical

responsibility. This could be achieved by utilizing a decent-

36

living emissions level, whereby all emissions over this

threshold are deemed luxury and should be paid for.77 Naturally

there will be empirical difficulties in estimating the

variations between differing individual needs. For example cold

climates require more energy for heating, or a disabled person

might require greater emissions for transport.78 However, it

seems simpler to calculate an individual’s carbon footprint than

to delve into historical complexities.

2) A universal application of a wealth threshold : all global

citizens that have the ability to pay, have a duty to pay for

climate change mitigation subject to stipulation one. Baer

proposes a development threshold of $7500 adjusted for

purchasing power parity, which represents the average poverty

threshold in an industrialized country.79 Consequently, below the

development threshold, persons have a right to prioritise their

own development and should not be held culpable for their luxury

emissions.

3) Remittances should be invested in climate change mitigation

projects: climate change has a near universal recognition as a

harmful consequence of causes that are well known.80 By

mitigating climate change, the most vulnerable are indirectly

77 The distinction between decent-living emissions and luxury emissions rests inneeds and wants, individuals’ need to emit decent-living emissions in keeping withthe methodological preliminary in this paper, but they want to emit luxuryemissions so they might enjoy aspects of affluent living. The concept is derivedfrom Henry Shue, but this paper adapts the concept by supplanting Shue’ssubsistence emissions with Rao & Baer’s decent-living emissions to allow a higherneeds threshold. Henry Shue, Subsistence Emissions and Luxury Emissions, in Stephen Gardiner,Simon Caney, Dale Jameson, Henry Shue (eds), Climate Ethics: Essential Readings, 200-14.78 Simon Caney, ‘Just Emissions’, Philosophy & Public Affairs, 40 (4) (2012): 264.79 Without delving into the empirical complexities of this calculation, suffice tosay it is open to further research to better accommodate the term affluent used inthis paper, but seems a reasonable illustration. Paul Baer, Glenn Fieldman, TomAthanasiou, Sivan Kartha, Greenhouse Development Rights: Towards an EquitableFramework for Global Climate Policy’, Cambridge Review of International Affairs, 21 (4)(2008): 654.

37

aided by diminishing the human rights violations that stem from

climate instability. This removes the empirical complexities of

calculating who has been harmed by how much, and by whom.

Therefore PI: is a forward-looking principle that states that all

global citizens above the development threshold are duty-bound to

pay for all luxury emissions above and beyond decent-living

emissions relative to their personal and geographical needs.

Further, those funds should be remitted to climate change mitigation

investment.

2.7 Conclusion The maximal interpretation of CBDR has been shown to entail great

empirical complexities that propagate ethical inconsistencies.

Accordingly CBDR has been found wanting under both criteria of

fairness and effectiveness.

This chapter has mitigated these practicality concerns of

historical emissions by developing a forward-looking principle

founded on the rights and duties of individuals. PI satisfies the

need for fairness on two counts: its universal application of the

wealth criterion removes the arbitrary miss-assignment of duties

within states based on wealth. Second, its universal application of

the culpability for presently high-emitting individuals removes the

arbitrary treatment of high and low emitters. If it were to be based

solely on emissions, it would risk the imposition of burdens on

high-emitting poor individuals. For example, Guyana, Papa New

Guinea, and Malaysia, all have per capita emissions ranked in the

top six in the world.81 If it were to be based solely on wealth it

would risk the imposition of burdens on low-emitting wealthy

80 Paul Baer, Glenn Fieldman, Tom Athanasiou, Sivan Kartha, ‘Greenhouse DevelopmentRights: Towards an Equitable Framework for Global Climate Policy’, 666.81 Eric A. Posner & David Weisbach, Climate Change Justice, (Woodstock, Oxfordshire:Princeton University Press, 2010): 123.

38

individuals to supplement the lacklustre efforts of high-emitting

wealthy individuals. In a phrase: only those individuals who are

capable and culpable are bound under the duty. Furthermore, the

funds raised should be remitted to climate change mitigation

projects. This removes the need to calculate which harms have been

caused by climate change to which individuals, and by whose

emissions.

PI does not excuse the emissions of the developed world; quite the

opposite. There are more affluent high-emitting consumers situated

in rich countries. But it also places burdens on those hundreds of

millions of affluent consumers in the developing world that meet the

principle’s stipulations. As such, it might garner a wide

participation thus satisfying the terms of effectiveness. Moreover,

it militates against disincentives to develop sustainably as burdens

increase with emissions for those above the development threshold,

thus creating the sustainable path of least resistance.

This chapter has shown that in a choice between a minimally just

principle that could be accepted, and a maximal principle that

hinders progress, there are powerful reasons to prefer the former.82

The task now, is to develop a principle to deal with some of the

more obstinate climate actors that may shirk their mitigation duty,

no matter how equitable it may be.

82 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 109.

39

3.0 Chapter Three: Dealing with Free-riders

The research now turns to the question: what if those bound under PI

do not fulfil their duty? Some of the resulting costs from non-

compliance will undoubtedly be covered by pro-active actors in acts

of altruism. That being said, if our experience of the CCR has

taught us anything, it is that it would be naïve to believe that

some of the most implacable actors in climate change, like China and

the US, will comply with their mitigation burdens.83 Consequently, it

is irresponsible to ignore non-compliers and hope that acts of

altruism will cover the shortfall. This necessitates a second

principle (PII) to assign duties to uphold PI, addressing the need

to garner a critical mass of participation for a CCR that can

effectively mitigate climate change.

83 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’,15.

40

This necessity is explored in three dimensions. First, a normative

rationale is offered for inducing compliance among those not

fulfilling their mitigation duty. Jonathan Symons’ “The Non-

Cooperator” Pays Principle” is a pertinent theory and is adapted

here to demonstrate how not complying with PI is a violation of the

duty to avert human rights violating climate change.84 Second, the

question of how that duty should be conceptualised in a world where

individuals must collaborate through institutions to effect global

change must be addressed. Elizabeth Ashford offers a duty to promote

just institutions.85 Her account does not directly cite climate

change, but rather is founded on the duty to protect basic human

rights, as such is in keeping with the decent-living

conceptualisation. Third, the question of who has a duty to promote

just institutions must be addressed. Caney offers an account that

those with the power to garner compliance with climate duties have a

responsibility to do so.86

These theories are utilized and adapted to develop an equitable

principle which shows how all those with the power to do so, have a

duty to promote just institutions that uphold PI. This is not the

economic responsibility suggested in PI, but rather an obligation to

induce compliance with that principle. Therefore this is a means to

the end of garnering the critical mass of participation necessary

for an effective CCR. Before commencing the development of PII

however, it is necessary to address the third objective of the

research question by explicating the propensity to free-ride in the

CCR. This is achieved by illustrating climate change as a CAP.

84 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’.85 Elizabeth Ashford, Duties Imposed by Human Rights, in Thomas Pogge (ed), Freedom fromPoverty as a Human Right, (Oxford: Oxford University Press, 2007): 216-289.86 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’.

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3.1 A Global Collective Action Problem A stable atmosphere is vital to the maintenance of, or progress

towards decent-living for all humanity, regardless of nationality,

wealth, or indeed which side of a border one may reside. Therefore,

the carbon absorbing capacity of the atmosphere is a common pool

resource (CPR). By definition none can be excluded from enjoying its

benefits of a stable climate, irrelevant of their contribution to

its protection or degradation; furthermore, it is further degraded

by the aggregate of individual use.87 Multiple parties have competing

claims on it: nations and individuals need to emit decent-living

emissions, and they want to emit luxury emission so they might enjoy

aspects of affluent living.88 The problem lies in the finite nature

of the atmosphere’s GHG absorbing capacity; as such, competing

claims on the right to emit GHG cannot be limitless.

A distinction needs to be made between a CPR and an essential

public good. Both are non-excludable in that no one can be excluded

from enjoying the benefits; however a public good, unlike a CPR is

also non-rivalrous. That is, that one person’s utilization of the

good does not diminish that available to others. Therefore, efforts

to maintain a stable climate are a public good, meaning that one

actor’s mitigation efforts do not diminish those available to

another. The problem ensues when one considers free-riders.89

Economically speaking, as contributions to the maintenance of the

CPR are voluntary, and no one can be excluded from its benefits

regardless of their contribution to its sustainability or

deterioration, the CCR is subject to the free-rider problem. Thus a

87 Robert Keohane & David G. Victor, ‘The Regime Complex for Climate Change’ TheHarvard Project on International Climate Agreements, Discussion Paper 10 (33) (2010): 10.88 Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change, 104.89 The term free-rider is used synonymously with non-complier in this paper. For amore in-depth analysis of the free-rider problem see: Derek Parfit, Reasons andPersons, (Oxford: Clarendon Press, 1994).

42

market failure obtains, following from the unremunerated positive

externalities that a stable climate provides, or otherwise stated a

lack of incentives or coercion is present to increase the benefits

or costs to non-compliers.90 Rational persons have no incentive to

pay for something they may be able to enjoy for free. This is

exacerbated by the enormous costs required to mitigate climate

change to the agreed “safe” temperature rise of 2 degrees: these are

estimated to entail an annual global investment of $380 billion to

$1.2 trillion up to 2030.91

Further exacerbating the complexities of justice in the CCR is the

fact that developed countries are estimated to be less vulnerable to

the effects of climate change than developing countries, and poor

persons will be disproportionately harmed across the globe wherever

they reside.92 This raises further questions of the differing

incentives among the global population. The affluent are more

capable of contributing to mitigation efforts, and indeed generally

more responsible for climate change due to higher emissions.

However they have less to gain from large expenditures on mitigation

efforts than poorer citizens who are less capable, and less

responsible.93 One can clearly see the huge incentive for the

affluent to free-ride in the CCR. Consequently, climate change is a

global collective action problem (CAP) inasmuch as the world has the

technological and financial capability to mitigate climate change,

but disagreement over the distribution of burden-sharing hinders

action.94 This necessitates not only adjudication under a fair

90 Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change, 106.91 Susanne Olbrisch, Erik Haites, Matthew Savage, Pradeep Dadhich, ’Estimates ofIncremental Investment and Cost of Mitigation in Developing Countries’, Climate Policy,11 (3) (2011): 974.92 Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change, 107.93 Paul G. Harris, What’s Wrong with Climate Politics and How to Fix It, 5.94 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 112.

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burden-sharing principle (PI), but multilateral cooperation to

mitigate the free-rider problem.

3.2 A Rationale for Inducing Compliance Despite global cooperation’s instantiation in the UNFCCC’s principle

of CBDR (the common responsibility of all states to protect the

environment through global cooperation),95 Symon’s argues that

cooperation is an element of the ethical deliberations in climate

change that is often overlooked.96 Therefore, with a CPR like the

atmosphere’s carbon absorbing capacity, an account of climate

justice should include cooperation as well as mitigation duties. If

action to protect the CPR is a normative goal, then proportionate

action to save it may be justified. The distinction, according to

Symons, rests on two factors: the unique value of a stable climate

to mankind; if the commons was less vital, action to induce

cooperation would be less justifiable. Further that ‘the morality of an

act is (in part) a function of the state of the system at the time it is performed.’ 97

Therefore, actions that may not usually be unethical, become so when

those actions threaten human wellbeing. This means that actions like

providing fossil fuel subsidies, or not cooperating with burden-

sharing duties, become unethical once a level of GHG accumulates in

the atmosphere that threatens a stable climate (a threshold is

crossed), therein jeopardising the decent-living prospects of global

citizens.

Under these conditions, actors that strive to protect the climate

are justified in inducing cooperation, even if such an action would

95 Derek Bell, ‘Global Climate Justice, Historical Emissions, and ExcusableIgnorance’, 391.96 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 99.97 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 107.

44

be deemed unjust with a CAP that is less vital than a stable

climate.98 Accordingly, Symons postulates:

‘Actors negotiating to secure an essential public good that cannot be provided withoutwidespread cooperation are justified in seeking to induce cooperation by imposingcosts on non-cooperators, even if this cost allocation would be considered unjust in theabsence of the collective action problem.’ 99

In order to utilize this theory for PII, some modifications are

necessary. To employ cooperation as the central stipulation does not

differentiate between high and low-emitters, both would incur equal

costs for equal non-cooperation. This factor satisfies effectiveness

by garnering participation through coercion; however it violates our

conception of fairness by treating high and low-emitters

arbitrarily. It is no leap of faith to change the cooperation

element to a compliance element: actors that fail to comply with PI

are jeopardising the stability of a vital CPR; they have full

knowledge of the critical state of the system at the time of the

non-compliance, and the need for widespread compliance with burden-

sharing duties. Therefore we can judge the actions of non-compliers

immoral through this situational ethics framework.

This rationale provides a normative justification for the guilt of

non-compliers and coercive action to hold them to account, providing

the first part of PII: non-compliers with PI are held accountable

when the state of the system at the time of the non-compliance

threatens the decent-living of global citizens. Further, the

legitimate coercion of these non-compliers is justified to uphold

the universal entitlements of persons not to be harmed by climate

change. The principle is expanded on in the next section to maintain

individuals as the ultimate unit of moral concern, which manifests

itself as a duty to promote just institutions. Institutions broadly

98 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 99-100.99 Jonathan Symons, The non-cooperator Pays Principle and the Climate Standoff’, 107.

45

defined can develop cooperation and operationalise cosmopolitan

ideals.100

3.3 Just Institutions ‘The shared duty not to deprive anyone of basic necessities does not depend on anyinstitutional allocation of responsibilities. Rather in the modern world, such aninstitutional allocation is the most plausible objective of this duty: we are best able torealize the right not to suffer this deprivation by collaboration with others in effectinginstitutional reforms that tighten up the allocation for responsibility for fulfilling thisshared duty.’ 101

Ashford posits a duty to collaborate to realise an institution

that can uphold the duty to protect basic human rights.102 This can

easily be conceptualised to encompass the negative right not to be

deprived of decent-living which holds, even in the absence of a just

institution to uphold PI.

Bell builds on Ashford’s work and proposes a “general climate

duty”. This assumes the allocation of climate duties should be

implemented by effective institutions, whose objective is to protect

human rights from anthropogenic climate change.103 Bell bases this

duty on two points: first that the duty ensues when climate change

is deemed a standard threat to the human right to development. This

means the point at which the fossil fuel development path was

locked-in so that human rights violating climate change was

inevitable. The second is when people could reasonably be aware of

that threat.104

Both points are contestable for a minimal account of justice as

they rely on the complex empirical and ethical estimations embroiled100 For an insight into institutions and regime theory see: Robert O. Keohane, AfterHegemony: Cooperation and Discord in the World Political Economy (Chichester: Princeton UniversityPress, 1984): 9.101 Elizabeth Ashford, ‘Duties Imposed by Human Rights’, 216.102 Elizabeth Ashford, ‘Duties Imposed by Human Rights’, 217.103 Derek Bell, Climate Duties, Human Rights and Historical Emissions, 38.104 Derek Bell, Climate Duties, Human Rights and Historical Emissions, 29.

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in backward-looking duties (Chp.2). For example did climate change

become a standard threat once GHG accumulated to a certain level? Or

perhaps with the onset of the industrial revolution when one could

postulate a fossil fuel development path was locked-in?105 Or even

earlier with the discovery of coal as an energy source? Further,

“when actors could be reasonably aware of this threat” would see

duties commence probably sometime in the 90s, when climate science

was widely accepted. Thus it is more reasonable here to maintain the

normative rationale that the guilt of the non-complier is

correlative to the state of the system at the time of the act.

Therefore climate change is a standard threat; as such PII specifies

that individuals have a duty to promote just institutions.

With this duty in mind, one can posit that: if an actor fails to

promote just institutions, she is violating the correlative human

rights that ensue from the failure to induce burden-sharing duties

among non-compliers. As such Bell includes the correlative duty of

rectification should the duty to promote just institutions not be

fulfilled.106 This poses a problem inasmuch as one would run into the

highly subjective barrier of how to quantify a failure to fulfil the

duty to promote just institutions. For example, the Copenhagen

conference (COP15) is largely accepted as a resounding failure.107

However, to whom do we assign that failure? Many would blame China

for its relentless pursuit of a maximal CBDR;108 others blame the US

for refusing to concede to binding restrictions without a reciprocal

commitment from major developing emitters.109 The EU could also be105 Derek Bell, Climate Duties, Human Rights and Historical Emissions, 34.106 Derek Bell, Climate Duties, Human Rights and Historical Emissions, 32.107 Paul Harris, What’s Wrong with Climate Politics and How to Fix It.108 Ed Miliband, ‘The Road from Copenhagen’, The Guardian (20th December, 2009)[Online] (www.guardian.co.uk/commentisfree/2009/dec/20/copenhagen-climate-change-accord). [Accessed 6th September 2014].109 Karin Backstrand & Ole Elgstrom give an illustrative narrative of the fault ofeach of the major actors at the Copenhagen conference. Karin Backstrand & Ole

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deemed culpable for offering too little financial aid to developing

countries, and failing to reach out to third parties and invest time

in building strategic alliances.110 That is not to say one is not

accountable for failing to promote just institutions, only that the

subjectivity makes imposing a financial burden problematic. In this

sense, imposing financial costs on those that fail to promote just

institutions risks placing undue burdens on duty-bearers; this

violates the need for fairness in the CCR.

The cost for not fulfilling the duty to promote just institutions

should lie in the resulting social stigma from failing to fulfil

that duty. Keohane states ‘even the most dim-witted egoist can see that, from her

standpoint, the proper comparison is not between the benefits of her rule-breaking and its

total costs to everyone, but between its benefits and its costs to her.’ 111 What Keohane is

colourfully alluding to here is that the dilemmas of collective

action are partly mediated through concerns of reputation: ‘the costs of

acquiring a bad reputation as a result of rule violations are imposed specifically on the

transgressor.’ 112 As such, the continuance of the climate change issue

into the future means that having a good reputation is valuable even

when the actor’s position in the CAP means her own malefactions

would bear little costs. The effects of an actor’s sullied

reputation from non-compliance could have far-reaching

consequences,113 not only for climate change agreements, but other

areas such as trade or financial markets. One can reinforce this

point by drawing on Brennan and Pettit’s114 economy of esteem:

Elgstrom, ‘The EU’s Role in Climate Change Negotiations: from Leader to Leadiator’,Journal of European Public Policy, 20 (10) (2013): 1369-86.110 Louise Van Schaik & Simon Schunz, ‘Explaining EU Activism and Impact in GlobalPolitics: Is the Union a Norm- or Interest-Driven Actor?’, 169-86.111 Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy, 105.112 Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy, 105.113 Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy, 105.114 Geoffrey Brennan & Philip Pettit, ‘The Hidden Economy of Esteem’, Economics andPhilosophy, 1 (2000): 77-98.

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‘There need be no intentionally borne costs associated with mutual invigilation:whether we like it or not, we will often be in a position - and this as a matter of sharedawareness - to keep an eye on one another and to recognize instances of social andasocial behaviour. And, more strikingly still, neither need there be any intentionallyborne costs associated with mutual sanctioning. We may carry out such sanctioningjust by being seen to observe and form an assessment of one another's behaviour.’115

The economy of esteem assumes that agents care about what others

think of them, that ‘we each cherish the esteem, and shrink from, the disesteem, of

our fellows.’ 116 Even when that judgement is implicit in the act, there

is a shared awareness between actors that others see or might see

them as having acted badly. Through manipulations of her actions she

may vary the esteem she enjoys. Under this assumption, compliance

may be garnered simply by recognising another’s pattern of

behaviour: ‘the unorchestrated esteem and disesteem that we give one another may put

in play forces that serve, as silently as gravity, to fix our behaviour in certain patterns.’ 117

It is not the purpose here to provide an exhaustive account of how

reputation or esteem differ or manifest in the literature. But to

establish that there is a solid theoretic tradition which

establishes a foundation on which an actor’s duty to fulfil her duty

to promote institutions can be induced. This demonstrates how one

does not need to tumble into the subjective minefield of determining

guilt from backward-looking precepts, and imposing tangible burdens

based on that subjectivism.

In consequence we can pose the second part of PII: owing to the

universality of individuals’ moral status,118 the onus is on

individual actors to institutionalize a positive duty to promote

just institutions that uphold PI. Further, the duty obtains both in

the absence or presence of a just institution.

115 Geoffrey Brennan & Philip Pettit, ‘The Hidden Economy of Esteem’, 78-9.116 Geoffrey Brennan & Philip Pettit, ‘The Hidden Economy of Esteem’, 78-9.117 Geoffrey Brennan & Philip Pettit, ‘The Hidden Economy of Esteem’, 78-9.118 Elizabeth Ashford, ‘Duties Imposed by Human Rights’, 216.

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3.4 The Power/Responsibility Dictum So far a normative rationale for the guilt of non-compliers with PI

has been proposed, and a duty for individuals to promote just

institutions to uphold this mitigation duty specified. This begs the

question: who is bound under this duty? Accordingly Caney proposes

that “with power comes responsibility”. Here the definition of power

is derived from the work of Robert Dahl who writes ‘A has power over B to

the extent that he can get B to do something that B would not otherwise do.’ 119

The maxim “with power comes responsibility” may be more ingrained

in the public consciousness from the 2002 Spiderman movie,120 but it

is often expressed in times of crisis.121 Winston Churchill famously

uttered the phrase ‘the price of greatness is responsibility’ 122 in a 1943 speech

given at Harvard University to rally the US’ WWII efforts. What

Churchill was saying is that one must lead by example when one

achieves a position of power or influence. Although Churchill was

affirming the US’ greatness, his message was that they must live up

to the responsibilities implicit in the term. He further stated:

‘one cannot rise to be in many ways the leading community in the civilised world without

being involved in its problems, without being convulsed by its agonies and inspired by its

causes.’ 123 From a cosmopolitan perspective, one can re-conceptualize

the leading community as global persons that have the power or

influence to affect others’ behaviour.

119 Robert Dahl, ‘The Concept of Power’, Behavioral Science, 2 (1957): 201-5. Cited inSimon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’, 24.120 Uncle Ben voices the phrase to Peter Parker.121 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’,25.122 Winston Churchill, ‘The Price of Greatness is Responsibility: Speech at HarvardUniversity’, The Churchill Centre (6th September 1943) [Online](http://www.winstonchurchill.org/learn/speeches/ speeches-of-winston-churchill/118-the-price-of-greatness). [Accessed 23 August 2014]. 123 Winston Churchill, ‘The Price of Greatness is Responsibility: Speech at HarvardUniversity’.

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This principle is not to be confused with the ATP because it does

not rely on one’s financial capacity, but rather the power to

influence the CCR through, for example, the political process, or

one’s powers of persuasion.124 Caney states that to persuade people

to comply with their duties, an actor must be able to employ a moral

authority, be regarded as trustworthy and command a degree of

respect.125 While this is certainly true, he interprets this to

encompass a wide variety of roles such as technology innovators,

scientists, urban planners and religious leaders. Further, he

prioritises this duty over burden-sharing duties. This is

demonstrated when he argues that should an actor have burdensome

responsibilities to induce compliance with mitigation duties, that

actor could have reduced mitigation duties.

This dissertation requires a narrower spectrum of actors for the

development of the compliance principle, actors that have a specific

ability to promote just institutions that instantiate PI in the CCR.

As such, equal weight is assigned to both duties (PI & PII), taking

the view that moral credibility in climate change comes from being

pro-active in mitigation efforts oneself. The adage “do as I say and

not as I do” has little credibility in climate politics. This is

exemplified by the dichotomous calls for action between the US and

China, and the refusal of both to take the necessary action. That

being so, those actors that have the power to exert leverage on non-

compliers through just institutions, are those that fulfil their own

mitigation burdens.

The question to ask now is: what are the power mechanisms that can

be utilized to promote just institutions; consequently, what types

of actors can wield their influence? Some illustrative although

124 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’,25.125 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’,24.

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certainly not exhaustive examples for how agents can utilize their

power include the following.126

Enforcement: those that have the political power or influence to put

in place enforcement mechanisms have a responsibility to do so. For

example, the EU attempted to include non-EU commercial airline

emissions into its emissions trading scheme (ETS) for all flights to

and from the EU.127 Effectively this would have increased the cost of

air-travel to the global affluent who account for the majority of

air-travel.128 Further, the EU Commission affirmed that non-

compliance would result in exclusion from the EU market.129 This is

an illustrative example of how mitigation burdens can be enforced on

the global affluent. Moreover, by bowing under political and

economic pressure from countries like China, India, and the US,130

the EU’s retraction of the scheme was a failure to uphold its duty

to promote just institutions as a pro-active climate change agent.

Incentivisation: rather than offering burdens through enforcement,

benefits can be offered through incentives. For example, the luxury

emissions funds raised under PI could be remitted to climate change

mitigation projects in developing countries that are pro-active in

reducing emissions from decent-living emissions. Or indeed those who

are developing sustainably above that threshold. Also consider the

126 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’,17.127 European Commission, ‘Allowances and Caps’ (19 December 2013) [Online](http://ec.europa. eu/clima/policies/ets/cap/index_en.htm). [Accessed 31 December2013].128 For an account illustrating the global affluent as the overwhelming majority ofconsumers in air-travel see: Philip Cafaro, ‘Reducing Consumption to AvertCatastrophic Global Climate Change: The Case of Aviation’, Natural Science, 5 (1A)(2013): 99-105.129 Martin Staniland, ‘Regulating Aircraft Emissions: Leadership and Market Power’,Journal of European Public Policy, 19 (7) (2012):1018.130 Martin Staniland, ‘Regulating Aircraft Emissions: Leadership and Market Power’:1010.

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EU, or the World Trade Organisation (WTO); in order to gain

membership to either, a country must meet certain standards. It

would be no stretch to envisage compliance with PI as a condition of

membership in these lucrative clubs.131

Norm-creation: norms can be created that influence others’ behaviour

encouraging compliance with mitigation duties by defining what

actions are appropriate. Ian Manners states: ‘the ability to define what

passes for “normal” in world politics is, ultimately, the greatest power of all.’ Manners’

uses an example of how EU norm diffusion had a significant effect on

the quest for the abolition of the death penalty.132

Normative power can also come from an actor’s distinct virtues or

character traits. Consider two distinguished climate scientists

Kerry Emmanuel (MIT), and Richard Alley (Penn State):

‘These scientists are hoping that their conservative credentials will help open someotherwise closed minds, but their ultimate point is that the science itself has nothing todo with politics — and everything to do with physics.’ 133

This refers to the fact that both publically identify themselves

as Republicans, the US party known to be most ideologically invested

in climate change scepticism. Thus we can say that these two climate

scientists are fulfilling their duty to promote just institutions.

Further that their power is derived from three dimensions: their

privileged position of public notoriety; their abilities as climate

experts, and their status as Republicans.

Another example might include regional variations within states.

For example California sets its own vehicle emission standards which

other states can choose to adopt, and sub-national units in China131 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’,18.132 Ian Manners, ‘Normative Power Europe: a Contradiction in Terms?’, JCMS 40 (2)(2002): 235-58.133 Justin Gillis, ‘An Antidote for Climate Contrarianism’, New York Times (4th January2013) [Online]. (http://green.blogs.nytimes.com/2/01/04/an-antidote-for-climate-contrarianism/>) [Accessed 21st August 2014].

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like Beijing and Tianjin have created voluntary carbon exchanges.134

There is a vast arena of possibilities for the setting and diffusion

of norms that might induce compliance with PI.

Undermining resistance: there is a vast network of misinformation

about climate change propagated by those that have an interest in

maintaining the status quo. For example one report cites that US

conservative billionaires have invested over $120 million between

2002-10 to the inception of a network of think tanks to discredit

climate change science and polarize climate politics.135 Further the

United Steel Workers Union in the US lodged an official complaint

through the WTO against Chinese subsidies for ‘illegal clean energy subsidies

to domestic solar, wind and other green industries.’ 136 One could posit that climate

scientists, politicians, or even the media have a responsibility to

publically denounce such behaviour or amend WTO rules to prevent

such deleterious actions.

3.5 The Compliance Principle (PII) A clarification of the costs imposed on those who fulfil their duty

to promote just institutions must be addressed. The duty should not

be unreasonably demanding. For example, the opportunity cost for

devoting time and effort to the task may be too burdensome for an

Indian farmer who needs more time to either maintain his decent-

living needs or indeed to prioritise his development towards that

end. Moreover he has less influence over prolific consumers/emitters

so is not in a position of power to induce compliance. The CEO of

134 Thomas Hale, ‘A Climate Coalition of the Willing’, The Washington Quarterly, 95.135 Suzanne Goldenburg, ‘Secret Funding Helped Build Vast Network of Climate DenialThink Tanks’, The Guardian, (14 February 2013) [Online] (http://www.theguardian.com/environment/ 2013/feb/14/funding-climate-change-denial-thinktanks-network).[Accessed 27 April 2014].136 Liu Cheng, ‘Globalization, Neoliberalism, and Climate Change’, Labor Network forSustainability, [Online] (http://www.labor4sustainability.org/post/974/). [Accessed 24April 2014].

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British Petroleum (BP), the Chinese Premier, or the UK foreign

minister, all have leadership roles thus can exert influence to

promote just institutions.

Two further points can be raised about costs: firstly most of the

costs are incurred by the non-complier, referring back to the EU

example, the cost of imposing environmental stipulations on

membership imposes the lion’s share on the applicant.137 Secondly,

eliminating something like fossil fuel subsidies and reallocating

them to renewable energy would likely result in a net gain for

global citizens; through either reduced taxation or the climate

change mitigation that clean energy provides.138

While both duties have an equal weighting, it is necessary to make

a distinction between when each duty applies. PI applies when actors

qualify the stipulations. Therefore the more irresponsible an

emitter, the higher the burdens (for those with the ability to pay).

PII applies when an actor qualifies the power/responsibility dictum.

However, her duty is partly proportional to her positive action as

her influence is derived in part from her pro-activeness in climate

change mitigation. Accordingly the head of a particularly

environmentally-conscious organisation has a greater duty under PII

than the head of an environmentally-irresponsible corporation.

At first glance, this may seem unfair as it punishes a responsible

stance. However, unlike the mitigation duty proposed in PI, this is

not an economic duty, and is subject to no direct tangible burdens.

Rather it relies on pro-active actors and the social stigma they

incur for inaction. This social stigma also applies to those who

shun their mitigation duties. However, simple logic tells us who out

of the two is most likely to fulfil their duties: the irresponsible

137 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’,30.138 Simon Caney, ‘Two Kinds of Climate Justice: Avoiding Harm and Sharing Burdens’,30.

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polluter who spreads misinformation, or undermines cooperation, or

shirks her mitigation duties? Or the climate conscious actor that

acts in direct contradiction to these factors and is socially

conscious of her environmental reputation?

PII: the inducement of compliance with PI is legitimized when the

situation is severe enough to threaten the decent-living of global

citizens. Furthermore, the duty rests with those individuals that

have the power to institutionalize a positive duty to promote just

institutions that might induce this compliance. This duty obtains

both in the absence or presence of just institutions insofar as it

does not impose excessive costs that might threaten an agent’s right

to decent-living.

3.6 Conclusion This chapter has utilized appropriate aspects of the work of

Elizabeth Ashford, Jonathan Symons, Derek Bell, and Simon Caney, in

order to develop PII which conforms to the need for fairness and

effectiveness in the CCR. This duty focuses on effecting a change

through the willing actions of individuals to induce compliance with

mitigation burdens.

In a situation when a high-emitter and a low-emitter have an equal

power to promote just institutions, the duty may well be higher for

the low-emitter as in part, power to uphold PII flows from moral

credibility within the regime. This may at first seem to infringe on

the requirement for a universal non-arbitrary treatment of

individuals. However, the distinction rests in its enforcement

mechanism. Simply stated, it relies on reputational pressures. This

militates against the imposition of unrealistic or subjective

financial burdens for fulfilling PII. This must be so due to the

arbitrary nature of calculating one’s power to effect change in

climate change. We can say that someone has power, but how much, and56

how much influence that power can exert are subjectivisms. These

cannot be estimated with the necessary degree of accuracy that would

warrant tangible burdens.

The fundamental point to take from PII is that those not

fulfilling their mitigation duties under PI are violating the

correlative human rights of the resulting climate change.

Accordingly, actors subject to the compliance principle have a duty

to induce that compliance. This part is tangible, and essential to

garner the critical mass of participation needed to avert

catastrophic climate change.

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4.0 Chapter Four: Conclusion & Further Research In an increasingly globalized world where the fates of global

citizens are intertwined, few climate change scholars would argue

against reform in the CCR. The key challenge is to develop a regime

that bridges the developed/developing world’s dichotomous notions of

justice by reconciling the calls for effectiveness and fairness; a

middle road of justice if you will.

The UNFCCC’s core principle of CBDR has been found wanting on two

counts: it prioritises fairness over effectiveness leading to

negotiating deadlock, and risks perpetrating the very harm it aims

to mitigate by miss-assigning duties to individuals. Similarly, the

calls for an abandonment of equity in the name of effectiveness

would never be accepted by the developing world, least of all China.

Thus it is no stretch to affirm that the pursuit of a maximal

account of justice in the name of fairness, and calls for its

abandonment in the name of effectiveness, contradict themselves by

militating against a global agreement.

This dissertation has tackled this challenge by proposing two

principles. PI demonstrates how a burden-sharing principle based on

the culpability and capability of individuals is superior in

satisfying both fairness and effectiveness to the three constituent

principles that form CBDR (PPP, BPP, ATP). Moreover, PI incentivises

the reduction of luxury emissions and avoids turning someone’s

wealth into a negative factor, thus shifting incentives to

sustainability for high and low-emitters alike, while avoiding

placing undue burdens on individuals within states.

The compliance principle (PII) utilizes a normative rationale to

legitimize the inducement of compliance with PI. Further it assigns

duties to promote just institutions that can work towards this end.

Unfortunately this is a prerequisite for an effective CCR as some of

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the more obstinate actors, notably China and the US, may cling to

perceived notions of fairness that do not extend beyond their

material interests.139 The strength of these two principles is there

simplicity. They bypass the historical and wealth complexities

raised in chapter two, and militate against the imposition of

tangible burdens based on subjectivisms that jeopardise the terms of

fairness. Each principle could work independently of the other;

however, the two principles combined achieve a greater approximation

of a fair and effective ethical framework, and might serve as the

foundation for a principled bargain between the developed and

developing world.

With a principled framework in place, the question to ask is: how

feasible are these principles? Feasibility broadly defined is the

existence of a practical pathway from one state of affairs to

another.140 In order to achieve this feasibility further research is

needed to determine the empirical thresholds for PI’s stipulations.

For example, Rao and Baer’s decent-living emissions are a good

illustration of a lower threshold that persons have a right not to

be forced beneath. However, research is needed to differentiate

between personal and geographical variations in these basic needs.

Further the wealth threshold under stipulation two of PI may need to

be raised in order to better approximate a wealth level that will

not force actors below the decent-living threshold should mitigation

burdens apply. This raises further questions of the costs of luxury

emissions. The cost must not force someone beneath the decent-living

threshold, but also, it must be high enough to discourage sufficient

high emissions to limit climate change to agreed safe levels.

139 Jonathan Pickering, Steve Vanderheiden, Seumas Miller, “If Equity’s in, We’reOut”: Scope for Fairness in the Next Global Climate Agreement’, 428.140 Jonathan Pickering, Steve Vanderheiden, Seumas Miller, “If Equity’s in, We’reOut”: Scope for Fairness in the Next Global Climate Agreement’, 427.

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Once these empirical complexities are solved, the next challenge

is how they should be implemented. Implementing the principles

through the UNFCCC would be the ideal scenario; in fact, under the

compliance principle, actors have a duty to promote such an

institution. However, the reality that all 190 signatories of the

UNFCCC might never come to terms on any global agreement needs to be

addressed. Regime theory is a body of literature that offers

solutions to this; it only lacks the ethical foundations necessary

to bring about a fair and effective agreement.

Hale141 and Falkner142 both propose a “bottom-up approach”. This

entails small powerful collectives including supranational bodies

like the EU, pro-active regions like California, businesses, NGOs,

and willing individuals, forming a climate change coalition of the

willing. Collectively these actors could institutionalize the

cosmopolitan principles posited in this research, and ensure their

application through the coercive power mechanisms illustrated in

chapter three. Some mechanisms for achieving a harmonization of the

principles within a coalition might include:

1) A carbon-trading scheme. Ton Bührs suggests “Community Carbon

Trusts”, which could administer a carbon-trading system for

individuals within local/regional communities.143

2) A carbon tax on luxury emissions. This would impose the costs on

businesses and consumers, placing the burden at the point of

consumption.

141 Thomas Hale, ‘A Climate Coalition of the Willing’.142 Robert Falkner, Hannes Stephan, John Vogler, ‘International Climate Policy afterCopenhagen: Towards a Building Blocks Approach’. Thomas Hale, ‘A Climate Coalition of the Willing’.143 Bührs’ framework is based on an equal per capita allocation of emitting rights,but could feasibly be adapted to incorporate the principles posited here. TonBührs, ‘Sharing the Atmosphere: a Proposal for an Equitable and Sustainable GlobalTrading Scheme for Greenhouse Gas Emissions’, Local Environment, 15 (9) (2010): 817-830.

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3) A border tax adjustment could impose an import carbon tax,

harmonizing the costs of high-carbon imports with products

produced within the coalition’s borders. This could mollify the

concerns over a loss of competitiveness from costly carbon

regulations within the coalitions borders.144

There is already a vast array of tools to calculate individual’s

carbon footprints that could facilitate such a scheme as carbon-

trading.145 Actors that qualify PII such as the press, or government

officials, and NGOs, have a duty to institutionalise these tools.

This system could exempt those under the development threshold

through means-testing, ensuring strict adherence with PI’s

stipulations. Moreover, proponents of these three mechanisms observe

a “double dividend”, thus while discouraging luxury emissions, funds

are generated which could be funnelled into mitigation projects,

satisfying stipulation three of PI.146

It is not the purpose here to analyse the theoretical postulations

for an international framework to replace the UNFCCC, only to

highlight the need for further research of how a principled

framework such as this could be operationalized. The main point to

observe is that the principles postulated could be implemented

through these mechanisms, and such an implementation might reconcile

the calls for both fairness and effectiveness in the CCR.

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Word Count = 13,189 excluding references and bibliography.

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