1. Introduction
Legal and political thinkers have always battled with the question of justice and, especially within a society, about the fair and just distribution of rights and responsibilities. This question is, however, not only relevant for the organization of municipal or domestic society; it has become increasingly relevant within the international legal system. An area where this has been most rife in the last three decades is the international law on climate change.
Scholars and practitioners alike have struggled with the question of how best to distribute rights and responsibilities within this emerging branch of international law, given the inequality in the distribution of the costs and benefits of climate change. Looking within society, John Rawls popularized the concept of distributive justice in answering the question. He maintained that these rights and responsibilities must be distributed in a manner that improves the conditions of those who are less well-off. He called this “the difference principle”. The current paper maintains that inequality, as reflected in the climate change problem, is a product of past injustices and that it is therefore necessary that international climate change law be structured in a manner that addresses and corrects these past injustices, even if this means that there are different levels of rights and responsibilities for different sets of countries. One must observe at once that the effects of climate change are not necessarily felt most by those who cause it.
This work initially takes a step back to the history of the development of the concept of distributive justice, drawing on the contributions of Immanuel Kant and then John Rawls and others. It then argues that the Kantian conception of the duty of the state to provide domestic aid for the poor offers a starting point in providing a theoretical justification for the application of distributive justice within the international climate change regime. This is not an act of charity, but of justice. Subsequently, building upon John Rawls’ duty of assistance found in The Law of Peoples, this paper argues that the application of the concept of distributive justice must be targeted towards the building of institutions required for climate change mitigation within beneficiary states. In other words, the aim of distributive justice here is not to narrow the gap between the rich and the poor. Instead, it is to enhance global climate change ambition and the ability of less-developed countries to respond to this danger. In doing this, this paper shifts away from those traditional arguments on distributive justice which aimed to narrow the rich/poor gap and focuses on developing effective institutions.
This essay begins with a brief explanation of the climate change problem and its cause and consequences. We then proceed to highlight and explain the inequality in the distribution of the costs and benefits of climate change. Section three examines the implications of this inequality on the development of an international legal framework on climate change. The next section delves into a brief historical analysis of distributive justice and how the term has been used in legal and political jurisprudence. Section five considers the adoption of distributive justice in international law and the various arguments for and against it. Section six seeks to justify the application of distributive justice within the international legal system, especially with respect to climate change. The paper concludes by emphasizing that the endpoint for distributive justice within international climate change law is the building of necessary institutions, and not necessarily the elimination of the gap between the rich and the poor.
Towards the end of the nineteenth century, a group of scientists led by Svante Arrhenius of Sweden began to study the workings of climate change. Arrhenius was among the first set of scientists to find conclusively that, through the burning of coal and other fossil fuels, humans would increase the atmospheric concentration of greenhouse gases (GHG) to such an extent that it would lead to a change in the climate in the form of global warming.Footnote 1 Charles Keeling was able to demonstrate, half a century later, that human emissions of fossil fuels was responsible for the increase in the atmospheric concentration of carbon dioxide and other greenhouse gases.Footnote 2
Climate scientists agree that human-induced climate change is indeed happening and is now an “unequivocal and a settled fact.”Footnote 3 This assertion is based on data and evidence collected by various experts and researchers in the field over the last twenty years.Footnote 4 The United States (US) National Academy of Sciences reports that climate change has become one of the scientific conclusions that have been so “thoroughly examined and tested, and supported by so many independent observations and results, that their likelihood of subsequently being found to be wrong is vanishingly small.”Footnote 5 It has been estimated that if there are no additional efforts to reduce these emissions, emission levels will continue to increase due to the growth in global population and economic activities.Footnote 6
Human influences have been the dominant cause of climate change. Human activities alter the natural flows of energy and thus lead to climate change by causing a variation in the atmospheric composition and quantity of these greenhouse gases.Footnote 7 During the nineteenth century, deforestation in Europe and North America was the primary cause of the increase in atmospheric concentration of carbon and other greenhouse gases. This quickly changed in the middle of the century when the use of fossil fuels became the major source of carbon dioxide.Footnote 8 The industrial revolution ushered in significant changes in the climate. Tons of gases were released into the atmosphere through various industrial activities.Footnote 9 These gases are released from various industrial activities which run on fossil fuels such as coal, petrol and oil-based fuels and gas.Footnote 10
1.1 Inequality in Costs and Benefits of Climate Change
As stated above, the emission of greenhouse gases from various sources add up to an existing atmospheric pool and lead to serious implications for the global climate as a whole.Footnote 11 There is no distinction in the distribution of the effects of climate change between states with high emissions and those with low emissions. This therefore leads to a disproportion in the distribution of the costs and benefits of climate change. The effects of climate change are not distributed in accordance with the origin of such climate change-impacting activity. Thus, even though most of the changes in the global climate result from industrial activities in Europe and North America, the effects of climate change are felt in places like Africa where there are much lower levels of greenhouse gas emissions.
Thus, even though the problem of climate change can be successfully traced to the industrialization of these countries, climate change regulation must now apply to both those who had the historic advantage of pursuing development through unrestrained exploitation of the environment and those who are only now beginning to explore their natural resources for developmental pursuits. The developed countries have used up a substantial portion of the capacity of the atmosphere to absorb emissions in pursuit of their wealth, economic development and improved standards of living.Footnote 12 The richest half of the world (representing high and upper-middle income countries) is responsible for 86 percent of global emissions while the bottom half accounts for only 14 percent.Footnote 13 Small island states are also threatened by loss of portions of their territory due to rising sea levels despite their low levels of industrialization.
This is further worsened by the history of colonization and the exploitation of developing countries by developed countries which has left former colonies underdeveloped. The underdevelopment in most of the global South has been attributed to unfair trade practices under colonial systems where resources were, and continue to be, exploited for the benefit of colonial powers to the disadvantage of the former colonies. It is therefore not surprising that developing countries have maintained that developed countries have both a “historic and current responsibility” for environmental problems due to their unrestrained exploitation of natural resources in the past.Footnote 14 As Shue puts it, “[w]hen a party has in the past taken an unfair advantage of others by imposing costs upon them without their consent, those who have been unilaterally put at a disadvantage are entitled to demand that in the future the offending party shoulder burdens that are unequal at least to the extent of the unfair advantage previously taken, in order to restore equality.”Footnote 15
The history of colonization also creates a relationship of distrust between former colonies and their former colonial masters. This has led to a situation where developing countries have a cynical view of international environmental regulation. They see it as an attempt by the developed countries to curtail the economic progress of developing countries.Footnote 16 They therefore view environmental regulation with skepticism and see it as a form of neo-colonialism targeted against developing economies. Developing countries maintain that the global environmental agenda is being defined by the “environmental interests of the North rather than the developmental interests of the South.”Footnote 17 This is especially so because developed countries pursued their development without any environmental restrictions. It is therefore argued that it is neo-imperialist and hypocritical for countries who enjoyed such advantages to seek to restrict how other countries, especially developing ones, use their natural resources for developmental purposes.Footnote 18
Developing nations were against the idea that natural resources, especially those within the territories of developing countries, are to be seen as global commons to be managed for the good of all. This attempt to extend the principle of global commons over nationally-based resources is regarded as a threat, as it not only deprives them from benefitting economically from their resources but is also viewed as an affront on the sovereignty of developing states.Footnote 19 Shiva explains this as developed countries telling the developing countries that “what’s yours is mine. What’s mine is mine”.Footnote 20
This is worsened by the fact that the generality of states that have been historically disadvantaged due to colonization also make up the majority of poor and developing states. These states generally lack the capacity for climate change adaptation and mitigation. It thus creates a situation where those who are the least responsible for a problem are the most affected by the problem even though they are the least capable of dealing institutionally with this problem. Climate change for these countries therefore comes in the midst of developmental concern and their current lack of financial and technological capacity to address climate change.
The need to address climate change thus comes amidst a myriad of concerns about the history of colonialism, the past unrestrained exploitation of resources by developed countries, and the global inequality that these have left in their wake. These therefore make the questions of fairness and justice a central part in the search for solutions and in the formation of rules and regulations on climate change. Climate change presents a phenomenon which cannot be solved by merely addressing its scientific causes. The nature of the climate change problem is such that its regulation within the international legal system must take into cognizance the inequality evident in the costs and benefits of climate change. Fairness and justice must lie at the centre of the creation of rights and responsibilities in international climate change law.
2. Fairness, Justice and the International Legal System
As previously stated, climate change presents a unique problem which requires that principles of fairness and justice be applied in the distribution of rights and responsibilities within the international law on climate change. Although certain groups of countries are responsible for, and have benefited substantially from, the causes of climate change, other countries who have not enjoyed these benefits, or who have benefitted to a much lesser extent, will face disproportionate consequences of climate change.
This implies that different sets of rights and responsibilities be attributed to different sets of countries depending on their level of development and other factors which state parties may agree to in the formulation of treaties and other agreements. This has become known, in international climate change law, as differentiation. This principle was first expressly provided for in the 1992 United Nations Framework Convention on Climate Change (Climate Change Convention). Article 3 provides that the implementation of the Convention shall be guided by the principles of “equity and in accordance with their common but differentiated responsibilities and respective capabilities.”Footnote 21 The Convention thus recognizes the different capacities of state parties and requires that this be factored into the distribution of rights and responsibilities under the regime.
Scholars and practitioners alike have differed on the theoretical foundation for the application of the principle of differentiation and distributive justice within the international legal system. If nations are sovereign equals, why should some be made to take more responsibilities than others? While the justification for differentiation may seem obvious to the lay person, founding its practice on specific legal arguments has not been as easy or obvious. This has been worsened by the political nature of international law and the difficulty of countries to agree on almost anything.
The disagreement on the role and application of differentiation in international climate change law has taken a binary form, with developing countries arguing an absolute application of the principle while developed countries seek to restrict its application.Footnote 22 Developed countries insist that environmental protection is an obligation to be shared by all states.Footnote 23 Accordingly, differential treatment was only a moral obligation, a charitable act based on higher levels of wealth and financial capability.Footnote 24 It is at best an attempt to make up for the “financial deficit” of developing states. This explains why the United States and some other developed countries opposed the non-inclusion of China and India among states who should take up obligations under the Kyoto ProtocolFootnote 25 and, more recently, the Paris Agreement.
It has been further argued that no legal duty can arise based on historic emissions because developed countries were primarily ignorant about the effect of greenhouse gases on the climate at the time and should therefore be spared any form of historic accountability.Footnote 26 Todd Stern, former US chief climate negotiator rejecting the idea that developed countries had any such obligation based on historic emissions, added that “for most of the 200 years since the Industrial Revolution, people were blissfully ignorant of the fact that emissions cause the greenhouse effect … the sense of guilt or culpability or reparations, I categorically reject that.”Footnote 27 In other words, since states were generally ignorant of the consequences of emissions, no guilt arises.
Others have raised the impracticality of calculating how much each country has emitted and attributing responsibility based on these emissions.Footnote 28 Its feasibility is difficult to establish. This is due to the lack of data and technology to calculate such past emissions at country-level. Even if this were possible, it has been noted that this will have the effect of placing responsibility on present generations for the mistake or ill-deeds of past generations.Footnote 29 Developed countries thus view climate change and global inequality as two distinct issues and regard any difference in responsibility within the climate change regime as charitable, rather than a legal duty.
It must however be stated that solving the climate change problem is impossible without addressing the contextual issues of justice and equity which are inherent in climate change. This is evident in climate change negotiations from Rio to Paris to the most recent Conference of the Parties held in Madrid in December 2019. An examination of these conferences and the legal agreements signed by parties reveals a differentiation approach to the distribution of rights and responsibilities under the regime. In other words, different levels of responsibilities are ascribed to state parties depending on their levels of development. The arguments for an obligatory differentiation in the levels of responsibilities undertaken by developed and developing countries rely fundamentally on the principle of distributive justice.
3. Distributive Justice: a Historical Analysis
3.1 From Aristotle to Rawls
The concept of distributive justice seeks to answer the question of how best to organize society and allocate its scarce resources among its members and various competing interests in a manner that ensures that everyone’s needs are met.Footnote 30 The term “distributive justice” is attributed to Aristotle.Footnote 31 He, however, used the word in a different sense from which it is currently known.Footnote 32 For Aristotle, distributive justice meant that each man got the share of the resources which he merited. He distinguishes this from corrective justice, which requires that wrongdoers pay damages to their victims proportionate to the injury inflicted.Footnote 33 Aristotle understood equality as “the fact that everyone is regarded in proportion to his or her merits.”Footnote 34
In his writings, and contrary to the modern use of the term, Aristotle never saw the redistribution of goods by the state for purposes of correcting societal inequality as a necessary requirement of justice.Footnote 35 He never conceived, as some scholars think, the idea that justice requires that the state intervene to correct the inequality in the distribution of wealth. Cicero would later employ the term distributive justice to describe beneficence. Thus, while justice was a legal necessity owed to every member of the society, beneficence, which he termed “distributive justice”, was only owed to friends, relatives, and fellow citizens, rather than strangers, and was not legally enforceable. He thus saw distributive justice as a synonym for charity.Footnote 36 He never regarded the distribution of resources in order to improve the lot of the poor as a part of justice proper.
Other scholars such as Aquinas and Grotius also toed the lines of Aristotle and Cicero’s separation of justice from benevolence, or what Grotius referred to as the “law of love” which is much broader than the conception of justice. It was Adam Smith who first began to talk about the legitimacy of taking advantage of state power to create a duty of beneficence, arguing that government should enforce certain duties of beneficence. As Fleischacker notes, in doing this, Smith was going beyond the general conception of distributive justice at the time.Footnote 37 He, however, conceived of beneficence in terms of acts like the duty of parents to children, neighbours, family, and friends, rather than the poor stranger.
The dominant thoughts, however, began to change by the middle of the eighteenth century. There was an increase in the belief that the state had the capacity, and should have the responsibility, to help those who were impoverished; it was therefore the state’s job to redistribute state resources in a manner that helped achieve this goal. The political movements at the time began to clamour for the eradication of poverty and it was through these philosophers and movements that distributive justice, as we know it today, was born.Footnote 38
The development of the modern concept of distributive justice was a product of the work of scholars such as Jean-Jacques Rousseau. Rousseau demonstrated that the solution to the problems of inequality within a society lay in its politics. It was not merely a matter for religious considerations. He differentiates the current unequal society with a state of nature and argues that it is the duty of the government to “prevent extreme inequality in wealth.”Footnote 39 Rousseau’s major role in the development of distributive justice was thus in questioning the existing inequality and arguing that it was possible to correct this inequality. He also brought this problem to the political sphere, rather than limiting it to the moral or religious.
Adam Smith also helped developed the concept of distributive justice by questioning the very idea of the poor. Unlike Rousseau, Smith was more focused on the evil which the distinction between the rich and the poor did to the private life of the poor. He questioned the existence of the class of the poor. He viewed the poor as equal in dignity with everyone else in society and equally deserving of the good things of life. He had what Fleischacker referred to as “a dignified picture of the poor”.Footnote 40 This conception gave room for the further development of the idea that the state should attempt to abolish poverty among its members.Footnote 41
Another scholar who was relevant in the development of distributive justice, as known today, is Immanuel Kant. He was the first major thinker to argue expressly that the state, rather than individuals, had an obligation to care for the poor.Footnote 42 As a starting point, Kant emphasizes the equal worth of all human beings and the fact that everyone is deserving of a good life. He explains that poverty is a product of injustice. Kant maintains that if men were truly just, poverty would be non-existent within society.Footnote 43 He equates the human inclination to give to the poor or do “benevolence” as an instinct which providence imbued in us as a way of making reparation for human injustice. Kant holds humanity in general responsible for this injustice, irrespective of whether a person has directly done an obvious act of injustice.Footnote 44 Thus, when we give to the poor, we are not giving him gratuity, we are merely returning to him that which he had been deprived of through societal injustice.Footnote 45
However, Kant notes that the nature of private charity is such that it creates a sense of obligation on the part of the recipient towards the giver.Footnote 46 Beneficence, according to him, creates a “debt that can never be adequately repaid and thus leaving the beneficiary in a state of perpetual indebtedness towards his benefactor”.Footnote 47 This further entrenches the existing hierarchy between the rich and the poor, the usual recipients of charity. Kant therefore argues that providing aid to the poor should be the duty of the state. This helps to avoid the hierarchy between giver and recipient which exists in private charity and ensures that the dignity of the poor man is not degraded.Footnote 48
It was, however, Gracchus Babeuf who first stated that the redistribution of goods to the poor by the state was a requirement of justice. Babeuf was of the view that there was a natural right to equal wealth. Everyone has as much right as the other person to the enjoyment of wealth, and from there he advanced that justice demanded that the society equalize wealth where there is an existing inequality in the distribution of wealth.Footnote 49 This is a position similar to Kant’s earlier postulation. Babeuf maintains a direct link between redistribution and the social contract. He holds the view that the purpose of the social contract was to ensure that the state could defend equality, which would otherwise be attacked by the strong and wicked members of the state of nature.Footnote 50 He thus adopts Locke’s social contractFootnote 51 to explain that redistribution is a core requirement of justice and the existence of the state.
3.2 Distributive Justice from Rawls to Present Date
Distributive justice, as we know it today, was propounded by John Rawls. In A Theory of Justice, he explains it as the difference principle. Rawls begins his explanation from the need to give equal opportunity to each member of the society. He holds the view that every member of a society should have an equal opportunity to realise their full potential. Fairness is achieved by ensuring that each person’s fate is determined by their set of choices, rather than by circumstances which are generally out of their control.Footnote 52 Success (or failure) is earned, and not endowed upon individuals.Footnote 53
In this kind of setting, success or failure, wealth or poverty will be determined by the course of action which a person decides to take. Where this state of affairs is not in place, Rawls argues for differential treatment in order to compensate those who have been thereby deprived. This, he continues, would be just and fair.Footnote 54 In other words, if certain members of the society possess some form of advantage which gives them an edge over those members who do not have such talents or opportunities, then societal goods must be distributed in a manner that “compensates” those without these advantages.
Rawls founds his position on the social contract theory. He argues that differential treatment is a condition that parties to the social contract would have included as part of the terms of the society being formed. They do this from behind a veil of ignorance where each person is unaware of their own abilities and how they differ from others’. They are therefore unable to make self-centred decisions. This ignorance forces them to consider what is best for each and every one and come up with impartial rules. The social contract generates fair principles of justice as the parties are unable to opt for options simply because it suits their personal state. Distributive justice is thus not merely a matter of goodness but a right; a condition for the existence of the society.Footnote 55
Rawls therefore argues that the difference principle would be a part of the social contract as a way of mitigating or solving the problem of inequality that may exist between individuals within a society. This is an egalitarian conception which allows for the distribution of resources and responsibilities in a manner that ensures that all parties are better off, even if this means an unequal distribution of these resources for the benefit of those that are less well-off.Footnote 56 It is a situation of social cooperation that is mutually advantageous to all parties.Footnote 57
Rawls also argues that there are certain “undeserved inequalities” in society and these inequalities call for a redress in order to have a just society. It is necessary to compensate those who are at a disadvantage.Footnote 58 He explains that this may mean, for example, spending more on the education of the less privileged than on the more privileged. It is thus a means of justice which allows for an unequal distribution of rights and responsibilities in order to correct or compensate for an existing injustice.
4. Distributive Justice in the International Legal System
4.1 A Brief Background
By the end of the twentieth century, there was an overwhelming support for the modern concept of distributive justice. It became a regular topic with which political philosophers began to engage, even if some did not necessarily argue in its favour.Footnote 59 The concept also began to gain prominence beyond the state or national legal system. Scholars and activists began to argue for the application of distributive principles within the international legal system. The introduction of distributive justice in the international legal system, championed primarily by Third World scholars, came as part of a larger movement for the emancipation of erstwhile colonies and the decolonization of international law.
The modern international legal system had been dominated by Western countries from its early origins in the Treaty of Westphalia. Among other factors, this was due primarily to the fact that most of the non-Western countries, especially in Africa and Latin America, were under the colonial domination of Western countries. They were thus not regarded as sovereign states and were incapable of being represented in international negotiations and the formulation of international law. They did not fall within the definition of “subjects of international law” at the time.Footnote 60 This state of exclusion, coupled with the exploitative nature of colonial trade, led to the creation of a global order consisting of “a North Pole of affluence and a South Pole of wretchedness.”Footnote 61
However, these hitherto colonial states began to gain independence by the turn of the twentieth century and became sovereign states. They increasingly began to participate in the global system. Their involvement gave rise to agitations about the need to restructure the existing international legal, political, and economic structures. These newly independent countries began to argue for a new economic order where global wealth will be more evenly distributed among developed and developing countries of the world.Footnote 62
Similar to Kant, they argued for the equality of all human beings. They maintained that poverty in the global South was a product of injustice by the West against the global South. This injustice had been perpetuated through slave trade and colonial economic practices. It was therefore necessary that the resulting global inequality be remedied. Distributive justice in the international system thus found its root in the economics and politics of decolonization. Scholars and practitioners alike began to clamor for a more just distribution of global wealth and they found this in distributive justice.Footnote 63
This agitation led to the adoption of the Declaration on the Establishment of a New International Economic Order by the UN General Assembly. This resolution provides that states work together for an order “based on equity, sovereign equality, interdependence, common interest and co-operation among all States, irrespective of their economic and social systems which shall correct inequalities and redress existing injustices.”Footnote 64 Its objective was to eliminate the gap between developed and developing countries and ensure international cooperation for economic growth and development.Footnote 65 It was to achieve this end through a meaningful increase in the flow of resources from developed to developing countries.Footnote 66 The resolution thus sought to reduce global inequality and ensure prosperity for all.Footnote 67
The UN Conference on Restrictive Business adopted a similar position. The conference declared that “in order to ensure the equitable application of the Set of Principles and Rules on Restrictive Business, states should take the development, financial and trade needs of developing countries into account in their control of restrictive business practices.” The resolution obliged developed countries to promote local industries and economic development within these developing countries.Footnote 68 There was thus an increase in the quest for ensuring that global wealth was distributed to regions of the world that previously had little or nothing of this wealth.
4.2 Distributive Justice and the International System: Theoretical
The proliferation of distributive justice in global negotiations and within the international legal system has led scholars to revisit the concept and the basis for its justification, especially within the global sphere. Distributive justice had originated as a principle for the state and none of the early scholars conceived of the application of this principle within the international system. Even Rawls did not consider this issue in his earlier treatise A Theory of Justice. He, however, touches on distributive justice in the international legal system in The Law of Peoples.
He acknowledges that there are “extreme injustices” among states, and while certain states are burdened by “crippling poverty”, others enjoy some form of superiority.Footnote 69 Rawls proposes that states that are well-off have a duty of assistance to those that suffer from these inequalities. The duty of assistance implies that wealthier nations assist the weaker ones in having a working “liberal or decent government.” The end target is to help “burdened societies to become full members of the Society of Peoples.” It is to help them transition into a society where people’s needs are fulfilled. Once this is achieved, the duty of assistance will no longer be applicable.Footnote 70 The duty of assistance cannot apply continuously without end to the relationship between states.Footnote 71
The duty of assistance serves to help the less well-off states to transition and develop basic institutions for determining “the path of their own future for themselves”.Footnote 72 The target is to ensure that the people’s basic primary needs are met and that the state can stand on its own.Footnote 73 Once this point is reached, the principle ceases to apply, as it has come to its endpoint. The existence of a liberal government, Rawls believes, will help each society to explore its potentials and increase its wealth. If this remains insufficient, such a society may borrow from other states.Footnote 74
Rawls differentiates the requirement of distributive justice within the domestic system, which is the duty to provide primary goods, from its application within the international system.Footnote 75 The duty of assistance does not include a duty to ensure relative equality between members of different states.Footnote 76 According to Rawls, there is no reason to narrow the gap between the wealth of different countries within the Society of Peoples.Footnote 77 While the former is concerned with the provision of primary goods, the latter is limited to a duty to assist in the development of right institutions.
Two major schools of thought have emerged on the applicability of distributive justice within the international legal system. On the one hand are the communitarians or contractarians, who generally hold the view that distributive justice arises out of a special relationship between the state and its members and is thus inapplicable between the state and those with whom it does not have this special relationship.Footnote 78 On the other hand are the cosmopolitans. They are of the view that distributive justice should be based on our common humanity, rather than physical borders or statehood. In other words, distributive justice should apply to the ordering of the global system.Footnote 79
4.3 The Nationalist/Contractarianism
The contractarian school is traceable to Hobbesian views of justice as seen in his treatise Leviathan. Hobbes argues that for the ends of justice to be achieved, there is need for a sovereign state. According to Hobbes, justice requires that certain constraints be placed on the individual and that certain institutions be in place, and these can only be made possible with the power of a sovereign. Justice, for Hobbes, was otherwise impossible. Contractarians therefore hold the view that since the basis for justice is the social contract, it follows that distributive justice only applies to those that are part of this contract. States are a unit of cooperation, and the distribution would occur within states.Footnote 80 This implies that for us to have an international conception of justice, there must be an international sovereign and we cannot speak of justice between states in the absence of such sovereign authority. The requirement for distributive justice only binds those who share a common society since distributive justice is based on the sharing of state institutions.Footnote 81
This view of distributive justice within the international system is rooted in sovereignty and the monopoly of a state to use coercive force within its territory. States are in an exclusive relationship with their members or citizens, which gives rise to certain standards of fairness in the organization of the state’s institutions. As Thomas Nagel points out, this is not a duty owed to everyone.Footnote 82 It is not based on common humanity, but on common sovereignty. In other words, the exercise of sovereign power by a state over its members implies that there is a duty of justice and this is achieved through the available state institutions.Footnote 83
The ends of justice are achieved through shared institutions based on political relationship. Without this relationship, there is no duty of justice. Where such relationship is non-existent, there is no duty to enter into one, and such a relationship may be avoided altogether.Footnote 84 Thus, even though the moral conception of justice is possible in the absence of a joint political relationship in the form of sharing a sovereign state, the legal duty of justice is confined within the sovereign space and the ensuing political relationship.Footnote 85
Nagel, however, differentiates between kinds of justice. Thus, while some conditions of justice are not conditional upon the sovereign relationship, others are. Rights such as bodily inviolability, freedom of expression, freedom of religion, and the like are not governed by membership of the state. Although the precise limits and modes of enforcement and protection may be determined by each society based on its institutions, individuals will not be denied these rights simply because they are not a part of a given political society.Footnote 86
This is not the case with socio-economic justice, the kind of rights which distributive justice seeks to establish. Socioeconomic rights, according to Nagel, are “fully associative.”Footnote 87 They are rights which accrue to us based on our common political relationship with others and we do not have these rights against those with whom we do not share this relationship.Footnote 88 The political system provides the instruction through which these rights can be demanded against our society and fellow members of that society. Thus, rights to democracy, equal citizenship, non-discrimination, equality of opportunity, and fairness in the distribution of social and economic goods are only shared with, and enforceable within, a given sovereign relationship.Footnote 89 The exceptional demands which a state makes on its members bring with them exceptional obligations of justice.Footnote 90
Michael Blake also contested the applicability of the Rawlsian principle of distributive justice in the international arena using the Coercion Approach. He begins by noting that every individual has autonomy. The social contract, however, creates a situation where the state has the right to exercise power and impose constraints on the people. This exercise of power constitutes a breach of this autonomy. Therefore, for coercion to be justified it requires the consent of the members of the society who are subject to such coercion. The legal system must offer to all who are subject to it reasons to accept its dominance over them. Distributive justice therefore constitutes one of the bases for justifying such coercion.Footnote 91
Blake argues that this is not the same within the international context. Since the international system does not exercise a system of coercion as seen in domestic law, there is no need for it to be justified on the same terms as coercion under national law. He argues that while distributive justice is not incompatible with the international system, there is a need for distinct forms of justification since the demands of a principle is dependent upon the context within which such principle is expected to operate.Footnote 92 The issue for Blake is thus the fact that distributive justice required new sets of arguments to be justifiable within the international legal system.
Within the global context, Blake argues for the principle of sufficiency, which he classifies as a distinct implication of distributive justice within the global context.Footnote 93 He differentiates between absolute and relative deprivation. While the former refers to a state of insufficiency of an individual irrespective of what others may or may not have, the latter defines (in)sufficiency based on the level of resources available to others. Blake argues that only absolute deprivation—poverty beyond which decent human functioning is impossible—should be the concern of the international system.
A concern for relative deprivation, the availability of resources to an individual relative to what others have, only arises when individuals share more than common humanity—that is, when there is shared citizenship.Footnote 94 Economic egalitarianism is only a moral requirement within the state’s domestic legal system.Footnote 95 The coercion which the government at the state level exercises gives room for this moral requirement. Since there is no coercion of this kind at the international level, no such moral requirement exists.Footnote 96 Blake thus creates two kinds of equality problems, one which is a cause for concern based on common humanity (absolute deprivation) and a second which is only justified based on a shared statehood (relative deprivation).
Blake’s theory has been criticized as failing to properly account for the exercise of coercive authority by the state outside its territory or over people who are not its members, and the implications of this on distributive justice. Blake also fails to differentiate adequately between domestic coercion and international coercion.Footnote 97 Others have also rejected the sovereignty approach to justice within the international system on the ground that the basic unit for all morality is the individual and not the society or the state. It therefore follows that it is the effect of an approach on individuals that should be the determinant factor of its usefulness or acceptability.Footnote 98 All individual lives are equally important irrespective of their nationalities and international boundaries must not become a determining factor of how the interests of an individual should be considered by another individual.Footnote 99
Oisin Suttle argues that despite these criticisms, the Coercion Approach offers a good basis for understanding distributive justice, its main defect being the inability to properly delineate between international and domestic coercion.Footnote 100 Suttle argues that the international system is coercive. However, this does not necessarily justify an egalitarian principle. Although the international system consists of institutions that distribute rights and responsibilities, it is unlike the basic structure explained by Rawls or the legal system used in Blake’s illustration.Footnote 101 The international system is made up of a plurality of institutions with joint persuasive effect but which, individually, have limited persuasion. Some of these institutions are domestic, others international and with no common political authority.Footnote 102 Suttle therefore argues that a proper analysis will be to examine each individual institution and how it interacts with other institutions within the system.Footnote 103 While distributive justice will apply with respect to some of these institutions, it will be inapplicable in others.
4.4 The Cosmopolitans
Cosmopolitans generally hold the view that distributive justice should be a concern for the international legal system, as it is within the domestic system. This school of thought contends that the demands of justice derive from a sense of fairness which is shared by all humanity, irrespective of nationality or statehood.Footnote 104 It emphasizes equal opportunity for all society. Cosmopolitans insist that to be born in a poor country is the same as being born into a poor family within an otherwise rich country. We therefore owe some form of duty to members of other societies who are threatened, and who live under unacceptable standards. Members of societies that are well-off owe some form of duty to societies that are not well off. This duty arises based on our shared humanity and cannot be restricted based on a person’s nationality or membership of a given society.Footnote 105
Thomas Pogge, one of the foremost proponents of cosmopolitanism, explains that the globalization of the concept of distributive justice is not inconsistent with the foundations of the Rawlsian idea of distributive justice.Footnote 106 Starting from Rawls’ idea of injustice based on certain contingencies such as genetic endowment, race, gender and social class, which lead to inequalities within the society, Pogge argues that nationality is one of such contingencies. In other words, just as people do not determine their genes, race, gender, or class, they also don’t choose their nationality (of birth). Nationality is bestowed at birth in the same way as race, gender, or class. If inequalities arising from differences in genes, race, gender, or class within a society are to be remedied, it follows that inequalities arising from differences in nationalities must also be remedied.Footnote 107
Cosmopolitans generally hold the view that human beings, not states or institutions, are the ultimate units of moral concern and all humans should be treated as ultimate units of moral concern by everyone. Pogge explains that the absence of an international sovereign or of institutions that can adequately address global injustice does not negate the applicability of justice to the international sphere. This absence does not weaken the cosmopolitan argument in the normative sense. Pogge explains that if within the national level a state rises to some form of authoritarianism, like Germany in the 1930s, this does not mean that we shift or change our criterion of justice. Absence of necessary institutions should therefore not lead us to reject the conception of global justice.Footnote 108
This absence merely implies that we have a duty to create such necessary institutions.Footnote 109 In fact, Pogge concedes that it would be naïve to think that the global order will be able to conform absolutely to a Rawlsian conception of justice. However, this does not refute the applicability of distributive justice in the international system. He explains that this would be like invalidating an aptitude test simply because no one could answer all the questions within the time given.Footnote 110 We do not give up ideas of domestic justice simply because we cannot fully achieve them.Footnote 111
Some cosmopolitans have however noted that the existence of “significant global interdependence” is necessary if the principle of distributive justice is to be extended to the international system.Footnote 112 The existence of global interactions and structures makes a system of global justice necessary. Since modern societies are not closed schemes, a criterion of justice limited to domestic institutions will be insufficient.Footnote 113 Maintaining a sharp distinction between the national and the international becomes difficult and often unhelpful in a situation of global interdependence.Footnote 114 As Charles Beitz explains, if states were totally independent with no relations or contacts with individuals, institutions or other states outside their borders, then global justice should be of no interest whatsoever. On the other hand, if states are understood to be interdependent, justice in international cooperation becomes necessary.Footnote 115 It is therefore important to have a “conception of justice” which provides a basis for appraising the global order and specifying our moral task.Footnote 116
Beitz argues for international distribute justice from a contractarian perspective.Footnote 117 He starts his contractarian construction from the position that the original social contract would be among members of a global, rather than national society. This would be the case since, unlike Rawls would have us believe, no society is self-sufficient, and the need for interdependence would have led to a social contract between these individuals constituting the global society.Footnote 118 The principles of justice would therefore have been applied first at the international level.Footnote 119 He explains further that the parties to the international original position would be aware of the inequalities in the distribution of resources and would have agreed to an adequate means of access to resources as a prerequisite for the success of the social contract.Footnote 120
Just like Rawls’ original position where members of the society have a veil of ignorance on their own abilities, states would be unaware of the level of endowments within their own society and would therefore agree on a “resource distribution principle” which gives each society the opportunity to develop and satisfy the basic needs of its members.Footnote 121 It would serve as an assurance for members of poorer societies that the lack of resources will not be an obstacle to their ability to realize basic economic conditions necessary for a just society and for the protection of their human rights.Footnote 122 This “resource redistribution principle” would serve as a platform for developing just institutions and an economy which seeks to meet the needs of its members.Footnote 123 This principle would operate in the same manner under the international system as it would under the domestic.Footnote 124
He adds that members of the international original position would be unaware that they belong to a particular domestic system and thus choose rules for that system only. They would have seen themselves as choosing rules and principles for a global system. In other words, there is not first a domestic then a global system. There is only a single global hypothetical contract, and in this contract, people choose principles of distributive justice without a knowledge of their own talents, conception of the good, or membership of a certain society. If the difference principle which requires that certain members of the society take up certain obligations in order to improve the state of the less well-off will be chosen at a domestic level, such a principle would also be chosen in the global original position.Footnote 125
Christian Barry, however, contends that the kind of international cooperation which is necessary for Beitz’s analogy is non-existent. While there is international trade among states, it is not the sort of mutually advantageous cooperation which Beitz’s theory presupposes.Footnote 126 Simon Caney clarifies that Beitz’s claim is that principles of distributive justice apply to groups of people who have some form of interconnection and this connection need not be “mutually beneficial or cooperative.”Footnote 127 The cooperation need not be one which benefits all the parties to it. This relationship only need be one which produces benefits or burdens that would have otherwise been absent.Footnote 128 It is this relationship, and not the existence of mutual benefits, which then gives rise to the applicability of distributive justice.
Caney has argued that the institutional approach to cosmopolitanism is fraught with problems. He notes that by basing the application of distributive justice on the existence of institutions and interconnections, the cosmopolitan falls into the very pit they are trying to avoid. The cosmopolitan tries to avoid a situation where a person’s prospects in life are based on the circumstances of their birth, a matter in which the individual has no say. The theory, however, creates a situation where the individual’s prospect is based on the “associational scheme” they are born into, an equally arbitrary option.Footnote 129 Caney explains that an individual born into a society without links to the world would be left helpless within the institutionalist theory.Footnote 130
David Richards has offered an alternative view of cosmopolitanism which does away with institutionalism and international cooperation.Footnote 131 He argues that the principles of justice apply simply because individuals are entitled to be included in the contract by virtue of their existence as humans.Footnote 132 In other words, humans are the ultimate units of moral concern. He posits that fair principles are such principles that would be accepted by all individuals to the social contract behind the veil of ignorance.Footnote 133 Like most cosmopolitans, he contends that nationality is as exclusive as any other natural fact and none of these should form the basis for the application of the principles of justice.Footnote 134 Our common humanity is sufficient, and shared institutions or interconnectedness are irrelevant for distributive justice.Footnote 135 Beitz later reformulated his position to reflect the sufficiency of moral personality and the “capacity to form, revise and pursue a conception of the good.”Footnote 136 Anyone who possesses these capacities is entitled to partake in global justice and have their interested represented.Footnote 137
Andrea Sangiovanni also does away with the institutionalist concept. He argues that coercion is not a necessary requirement for equality as a demand for justice.Footnote 138 He explains this through an illustration of a society under some form of attack which disables or disarms the society’s law enforcement agencies. He argues that even in such a condition, the state would not fall into utter chaos. The majority of the people would still abide by the law and the state would continue to provide the essential services it is required to provide. Citizens would continue to draw up contracts and enter into legal relations.Footnote 139
If these do not change in the absence of coercion, Sangiovanni asks, why should the principles of distributive justice used to evaluate the political system be any different? In other words, if people would continue with the normal course of action in the absence of coercion, isn’t that indicative that a different justification, other than coercion, is responsible? Does the legal system then no longer need to protect the most disadvantaged in the society, since it no longer exercises its coercive power? Sangiovanni also draws a line between what it means for a course of action to be coercive and what it means for it to be non-voluntary and concludes that coercion is not a necessary condition for an act to be non-voluntary.Footnote 140
An action is voluntary where an individual has viable alternatives. If such a person chooses to take a different course of action, it will not hinder one’s personal access to any of the basic goods and services necessary for developing and pursuing a fulfilling life. However, where there are no viable alternatives, and if a different course of action would be excessively burdensome, it follows that such a course is non-voluntary even if it is non-coercive. In the hypothetical non-coercive state, it is obvious that if the members of that society wish to continue to have access to basic goods and services, they must continue to follow the course of the law even in the absence of coercion. It is non-voluntary, even though it is non-coercive.Footnote 141 He therefore argues that Blake’s cosmopolitan theory could be saved if the focus on coercion is done away. It is possible for a course of action to be non-coercive, yet non-voluntary.
A special justification for an action is only necessary where it is non-voluntary. In other words, where there is an alternative course of action which is neither overly burdensome nor does it affect the recipient’s access to basic goods, the standards for justification would not be as stringent as it would be with a non-voluntary action.Footnote 142 This explains why the state must provide justifications when, through the legal order, it “imposes duties, confers rights, issues directives, and demands compliance with them.”Footnote 143 It must justify its request for compliance. Nagel has pointed out that the laws that would be justified are such that ensure equality for all.Footnote 144 It is thus in this sense that the state institution has certain obligations which may not necessarily apply within the international sphere. It is a necessary and reciprocal requirement that states provide a certain class of collective goods to fellow citizens and members of the state who together sustain the state and must comply with its dictates.Footnote 145
Sangiovanni notes that his theory of reciprocity does not imply that there are no obligations of distributive justice at the global level. It only implies that the nature and content of distributive justice at the global level is different from what is obtained at the domestic level.Footnote 146 The crux of the reciprocity-based argument is that “equality applies among those who share in the provision of the basic collective goods required to develop and act on a plan of life.” In other words, the relationship of belonging to the same system and contributing to that system creates an obligation for equality, or distributive justice. This relationship could be within a state, a transnational or international system.Footnote 147 In the absence of such a relationship or form, the requirement for justice ceases.
This position he argues avoids the criticisms which question the application of distributive justice at the international level on the basis that the international system lacks coercive authority. It also avoids arguments that question whether international law governs or applies to private property and the implications of that on distributive justice at the international level. He concedes that indeed the institution of the state creates certain obligations. It is a necessary and reciprocal requirement that states provide certain classes of collective goods to fellow citizens and members of the state who together sustain the state. This does not however imply that there are no obligations of distributive justice at the global level. It only implies that the nature and content of distributive justice at the global level is different from what is obtained at the domestic level.Footnote 148
Historical justifications have also been given for the extension of ideas of distributive justice to the international system. Pogge explains that the rejection of distributive justice on the international plane fails to take historical facts into consideration. He points out that Western states have been responsible for a global military and economic system that has wielded tremendous influence on third world countries. While he does not argue that retribution is necessary for colonialism and slavery, Pogge is of the view that this dynamic has changed the global system and has made global justice a necessity.Footnote 149 Thus, while we may not be able to correct the injustices of the past, it is necessary to ensure a just global structure that ensures that each state is more prosperous.Footnote 150
Some scholars have objected to the cosmopolitan conception on the basis that it is not mutually beneficial. It is argued that wealthy nations would be better off without a global system which imbibes in the Rawlsian conception of justice. Distributive justice within the international system is deemed as being non-advantageous to rich countries. It has however been countered that the idea of global justice is mutually beneficial for both individuals and states, when compared to non-cooperation. Even so, the benefits to be enjoyed by poorer countries would be nothing compared to what is enjoyed by developed countries within current international economic relations.Footnote 151
It has also been noted that increasing international economic transactions have created an additional basis for international morality.Footnote 152 Big corporations make profits but are not required under international law to reinvest these profits in the societies from which resources are tapped. These corporations usually reinvest the profits where they believe it will give more yield. There is thus a world market where the demand for goods is generally insensitive to the place where it was produced.Footnote 153 Coupled with the ability of multinational corporations to fix prices which are suitable to them, this has led to an increase in the gap between rich and poor countries. Unfortunately, these companies are able to escape the efforts of national governments to keep profits within their borders. These companies do so through their political power and the ability to move profits through transfer pricing.
The principle of distributive justice is thus premised on the fact that international social and economic cooperation leads to the creation of benefits and burdens. The role of the principle is to state or specify what constitutes a fair distribution of the benefits and burdens produced.Footnote 154 National boundaries are no longer a limit to social cooperation anymore. There is now significant global political and economic cooperation and interdependence. Boundaries no longer represent the limits of social obligations. It is therefore no longer useful to confine principles of social justice to domestic societies.Footnote 155
4.5 A Quick Summary
One thing is clear from the above: distributive justice at the global level continues to be a contested topic. There is no consensus or shared understanding of the role of justice and more specifically, distributive justice within the international legal system. Certain scholars hold the view that shared institutions and reciprocal obligations are what give rise to a distributive justice requirement. The absence of these institutions or a shared statehood implies that the international system should not concern itself with issues of distributive justice. Others have argued instead that distributive justice arise from our common humanity and it is not limited by statehood or institutions. Alternatively, they argue that the existing international institutions and levels of shared reciprocity have become sufficient to justify the application of distributive justice.
It is worth restating that most of the recent debates of distributive justice have followed the Rawlsian principle of distributive justice. Rawls’ premise was that certain individuals within the society are usually well-off when compared to others. He attributes this superior economic condition to the possession of natural talents or other things which the poorer part of the population do not have. The poor in Rawls’ conception are thus poor because of the natural abilities which they possess or do not possess, a factor that is not their own choosing. Justice, he concludes, requires that state resources be shared in a manner, even if unequally, that ensures that the less well-off have the basic goods or that the gap between the rich and the poor is narrowed as much as is possible.Footnote 156 Differentiation of rights and responsibilities between otherwise equal members of the society will be therefore be justified as part of an effort for the redistribution of goods.
5. Distributive Justice in International Climate Change Law
As earlier stated, the climate change problem is unique. There is a disproportion in the distribution of its costs and benefits among states. While developed countries have been the major source and beneficiary of emissions, developing countries will be more severely affected by its effects. This is worsened by the low levels of financial and technological development in these developing countries. This further entrenches the existing inequalities between countries of the global North and the global South.
The question therefore arises as to the role of distributive justice not only within the international legal system generally, but more specifically within international climate change law. In other words, does the international law on climate change have a duty to take the existing inequalities into consideration in the distribution of rights and responsibilities? Must this branch of international law be structured in a manner that ensures that the gap between the rich and the poor countries is narrowed, or at least improves the lot of the poorer countries? And how do we justify such application of differentiation in the distribution of rights and responsibilities?
In answering these questions, I rely on Kant’s conception of justice as a basis for the application of distributive justice in international climate change law. I then proceed to borrow from Rawls’ duty of assistance to establish the extent and the purpose of distributive justice in international climate change law. Although Kant used the words “distributive justice” in a different sense, he argued in support of the provision of state aid to the poor and his argument offers a convincing basis for justifying the application of distributive justice in the international law on climate change.
Immanuel Kant uplifted the provision of aid to the poor from something that was morally expedient to being a requirement of justice.Footnote 157 Kant starts with the position that all human beings are created equal. Every human being is worthy and deserving of honour and of a good life. This right enjoyed by each individual must be recognized and respected by all human beings in their interactions with each other. Unlike Aristotle, and to a lesser extent Rawls, who spoke about the existence of talents or virtues, Kant insists that a person’s worthiness is independent of that person’s talents or virtues. They are simply worthy because of their possession of rationality. At the basic level, every individual is possessed of the right to a decent life.
The equality of all human beings implies that no human is justified in exercising non-consensual dominion over other humans. All forms of exploitation would be antithetical to the notion of justice. The existing inequality in a society is perceived as a product of the general injustice inherent in the current political or societal structure. It therefore becomes necessary that the state embark on redistributive policies to ensure that the poor are restored to a basic level, where basic goods are accessible for them. In other words, distributive justice is a form of corrective action to correct the injustices of the past which have altered the equality of all human beings.
Corrective justice is concerned with how to remedy the wrongs or injustices of the past. Elli Louka defines corrective equity as an approach which seeks to “correct the imbalance in the existence of power by providing assistance to the weaker members of society and those in need.”Footnote 158 The aim is to correct past inequalities. Corrective equity is expressed in treaties which give some differential treatment to developing countries in order to supplement their weak position within the international community.Footnote 159 The concern of distributive justice is thus to restore us, as much as possible, to this state of equality, bridging the economic inequality gap between the rich and the poor.
There is nowhere else where this is as evident in the international system as climate change. This can be approached from two sides. First, the exploitation of natural resources by developed countries both within their territories and within former colonies, which has impoverished the latter, while enriching the former. The underdevelopment in most of the global South has been attributed to the practice of unfair trade practices under colonial systems where resources were, and continue to be, exploited for the benefit of colonial powers to the disadvantage of the former colonies.Footnote 160 As Mohammed Bedjaoui explains, Europe and the United States have exploited resources at the expense of the Third World and are only able to live in wealth at the expense of the developing world. He further argues that the present international legal system, under the guise of neutrality, has helped to consolidate the gains of this unequal economic relations, if not to create it. This body of laws was European at its conception and, according to Bedjaoui, was “able to serve as a legal basis for the various political and economic aspects of imperialism.”Footnote 161 Global poverty is thus, according to this view, a product of European global economic and political exploitation.
Secondly, developed countries are responsible for a disproportionate percentage of global emissions. Although all countries contribute to the build-up of greenhouse gases, it is generally agreed that developed countries are responsible for majority of the accumulated greenhouse gas (GHG) emissions.Footnote 162 Developed countries are responsible for over seventy percent of global emissions while developing countries contribute about a quarter even though they have eighty percent of the world’s population.Footnote 163 As of the early 2000s, the United States alone was responsible for almost twenty-five percent of the world’s greenhouse gas emissions as compared to 136 developing countries who contribute a total of twenty-four percent of these emissions.Footnote 164
It is therefore not surprising that developing countries maintain that developed countries have both a “historic and current responsibility” for environmental problems due to their unrestrained exploitation of natural resources in the past.Footnote 165 As Shue puts it, “when a party has in the past taken an unfair advantage of others by imposing costs upon them without their consent, those who have been unilaterally put at a disadvantage are entitled to demand that in the future the offending party shoulder burdens that are unequal at least to the extent of the unfair advantage previously taken, in order to restore equality.”Footnote 166
It is in this regard that Kant becomes relevant for us as we seek for an equitable climate change regime. The normative idea that the existing inequality in society is a product of injustices within the community is seen at a practical level with respect to climate change. Developed countries benefited from centuries of slave trade, colonization, and other forms of economic and political exploitation, but in so doing, they left most of the global South in poverty. Thus, they altered the natural state of equality in which all humanity was worthy of honour and of a decent life with access to basic goods. It therefore becomes imperative that distributive justice, the correction of existing inequalities, be at the centre of global climate change laws. The injustices of the past cannot simply be overlooked, especially when their impacts continue to be felt by millions of people who are still alive. Where there is a wrong, there must be a remedy.Footnote 167 As Kant notes, aid to the poor is not an act of charity. Instead, it is correcting an injustice within the state structure.
5.1 Distributive Justice as Right among Equals
It must be noted that this ambit of Kant’s argument relies primarily on moral arguments. Kant takes the position that private charity creates pride in the almsgiver while expecting the recipient to be grateful for such alms and thus degrading the recipients’ dignity. Charity, however, should not lead to such a hierarchy. He maintains that charity should help establish a society where all human beings are equal and each individual’s absolute worth is upheld.Footnote 168 Assisting the poor by means of state obligation, rather than private charity, thus helps to keep the rich’s pride in place while upholding the honour of the poor. In place of private charity, the state should create a system of responsibility where those who are better-off have certain (tax) obligations towards the state, and the state in turn has obligations towards the poor to remedy the injustice that has led to their poverty.
This is why the focus of distributive justice within the climate change regime is to hold no individual state directly responsible for any developing state. In other words, it is not to create a relationship of saviour and saved. Instead, developed countries would have certain responsibilities, akin to the tax system proposed by Kant, within the international legal system governing climate change. They are responsible to the climate change regime under the UNFCCC, and this obligation does not provide them with any corresponding rights over developing countries. A developing country that benefits from this arrangement would not be obliged, for example, to sell its natural resources or engage in any trade with a developed country in exchange for the aid received.
This helps to ensure that the sovereignty of states is protected irrespective of their status as beneficiary or donor states. The “pride” which comes with private charity is eliminated while ensuring that resources flow from those who are better equipped to those who are in need of such resources. The provision of aid will thus prevent a situation where the already existing inequality is further entrenched.
5.2 Distributive Justice and its Limits in International Climate Change Law
Having established that, given the history of colonization and the responsibility for the majority of historical emissions, distributive justice is a necessary requirement of justice under international climate change law, we turn to examine the nature and limits of distributive justice in global climate change regulation. The application of distributive justice under international law will be different from its application within a domestic society. Thus, while the domestic society may concern itself with the redistribution of primary goods or with establishing an egalitarian society, international law does not necessarily have to concern itself with such goals.
The application of distributive justice in international climate change law must be directed towards the building of institutions that help poorer countries to improve their adaptability to, and mitigation of, climate change. This will be reflected in specific treaties and agreements by differentiating between the class of rights and responsibilities to be attributed to state parties. This is already in operation within the current climate change law as reflected in the United Nations Framework Convention on Climate Change, the Kyoto Protocol, and, to a lesser extent, the Paris Agreement.
The application of distributive justice within the climate change framework must be distinguished from the calls for a new international economic order, which became popular towards the end of the twentieth century. Whereas such calls are targeted towards a global redistribution of wealth, distributive justice within the climate change framework is less radical and more practical. It merely relies on historical injustice and its role in global poverty, the creation of the climate change problem, and the lack of capacity of certain groups of countries to address climate change. And upon this, argues that it is a requirement of justice that the distribution of rights and responsibilities under the climate change regime follow a path that ensures that the capacity of poorer countries—the victims of these past injustices—is improved.
This is akin to the duty of assistance postulated by Rawls in his treatise The Law of Peoples. Rawls differentiates between distributive justice within the state and what he calls duty of assistance in international law. The duty of assistance must have an endpoint and an objective. The objective, as explained by Rawls, is the building of institutions which ensure that the beneficiary state is able to decide its own course, and once this end is achieved, an end-point is reached and the duty of assistance will cease. The purpose is thus not to create a situation of perpetual liability for a group of states, but to ensure that past injustices that have led to the incapacitation of certain countries are remedied. It does not create a relationship of dependence between developed and developing states. The development of poorer countries must continue to be championed by their people and government.
However, since they must now face the unique challenge of climate change, international laws must ensure that their position vis à vis the costs and benefits of climate change must be reflected in the distribution of rights and responsibilities under the regime. Rawls’ principles of differentiation, which recognizes the fact that different levels of rights and responsibilities may apply to members of a state, is thus useful in this regard. Differentiation, under international climate change law, is a necessary requirement if the ends of justice are to be achieved.
6. A Unique Challenge
Climate change creates a unique challenge for global cooperation. Irrespective of where emissions originate, it contributes to a global pool affecting global temperatures, increased desertification, rising sea-levels, and other impacts. Unfortunately, the distribution of these adverse impacts follows a different path from the paths along which the emissions come. Thus, while most of the historic emissions have originated from developed countries, situated mostly in the global North, most of the negative institutional effects are felt by developing countries situated in the global South. In other words, the effects of climate change are not necessarily felt most by those who are responsible for the greenhouse gas emission which caused the climate change.
This situation is worsened by the nature of the relationship that had existed between both groups of countries. Whereas developed countries had been early comers to the industrial revolution and had the opportunity for unrestrained exploitation of natural resources, developing countries were only beginning to explore their environmental resources for developmental purposes. The need to regulate the use of resources in order to protect the global environment thus seems like an attempt to curtail the ability of developing countries to pursue developmental growth. This is further worsened by the history of colonization and unfair trade practices practiced by developed countries against developing countries. Colonization had exploited the resources of the former colonies to the advantage of the colonizers while leaving the colonies poor and underdeveloped. Unfortunately, this set of countries must now face the impacts of climate change for which they are not only ill-equipped to address but are also least responsible.
This disproportion in the distribution of the costs and benefits of climate change puts the question of fairness and justice at the centre of the global efforts to curb climate change. It is therefore not surprising that most of the negotiators from developing countries have insisted in some form of differentiation in the distribution of rights and responsibilities within the climate change framework. Indeed, the United Nations Framework Convention on Climate Change provides for equity and differentiated responsibilities as a guiding principle for the treaty and the climate change framework. However, disagreements continue to exist between scholars and practitioners, especially across the developed/developing countries divide, as to the justification for differences in responsibilities under the climate change framework.
7. In Summary
In this paper, an argument has been made for the application of distributive justice within the global climate change framework. It is argued that the injustice inherent both in the climate change problem and in the wealth gap between developed and developing countries gives rise to demands for justice and for the correction of past injustices, relying on Kant’s argument that human beings are naturally equal and equally deserving of honour and a decent life. The inequality that exists is a product of man’s injustice to man and it is the duty of the state to remedy this inequality and ensure that support is provided for the poor. In doing this, the state is not doing charity, it is merely returning the poor to a state which they would have been without the injustice. Distributive justice thus serves a corrective purpose. Or so one must hope.
In the same way, the climate change regime must thus be structured in a way that rights and responsibilities are distributed in a manner that seeks to remedy past injustices. The gap that exists between developed and developing countries and their ability to address climate change must be addressed by ensuring that support is provided for developing countries to develop their institutions to this end.
Distributive justice under climate change will thus achieve a different purpose from what the proponents of the new international economic order had in mind. The purpose of distributive justice within the framework is not to narrow the gap between rich countries and developing countries or to order a redistribution of global wealth. On the contrary, it is to provide support for poorer countries in developing their climate change resilience. Being fair, it does not give a blank cheque to developing countries to hold developed countries perpetually liable. The intent of distributive justice is neither to create a perpetual claim against developed countries nor to create a hierarchy between developed and developing states.
Distributive justice within the climate change regime, like Rawls’ duty of assistance, has an endpoint after which it may no longer be enforced. It is not to provide “primary goods” or enforce a global equality. It is to build the necessary institutions for countries who have suffered injustice in the past to be able to cope with climate change, a problem for which they have been the least responsible but with which they must now battle.
