An investigation into the implications for emissions rights under the UN Framework Convention on Climate Change

1. A
Right
to
Emit?:
Common
but
Differentiated
(Historic)
Responsibility
and
the
International
Climate
Change
Regime.
The
historical
emission
of
greenhouse
gases
(GHG)
by
developed
countries
has
brought
the
world
to
the
brink
of
ecological
catastrophe.
It
is
now
known
that
the
capacity
of
the
Earth’s
atmosphere
to
absorb
these
emissions
is
limited.
With
current
modes
of
industrial
production
and
consumption,
and
therefore
development,
inextricably
tied
to
GHG
emissions,
access
to
the
absorptive
capacity
is
paramount
for
hopes
of
developing
countries
to
achieve
the
standards
of
living
currently
enjoyed
by
developed
countries.
The
imposition
of
limitations
to
this
common
resource
necessitates
an
agreement
on
the
distribution
of
current
and
future
emissions
entitlements
between
the
two
parties.
Currently,
such
a
distribution
is
to
be
guided
by
the
principle
of
common
but
differentiated
responsibility
(CBDR)
as
set
out
in
the
United
Nations
Framework
Convention
on
Climate
Change
(UNFCCC).
This
paper
will
seek
to
uncover
the
interpretation
of
CBDR
that
should
guide
this
distribution,
and
the
reductions
of
GHG
it
would
entail.
Climate,
Conflict,
and
Consensus
While
there
are
still
pockets
of
dissent,
a
general
scientific
consensus
now
exists
surrounding
the
role
of
human
activity
in
bringing
about
rapid
climate
change.1
As
part
of
this
consensus,
the
increases
predicted
in
aggregate
global
temperatures
have
been
attributed
to
industrial
development
–
the
pace
of
which
has
intensified
considerably
post-­‐World
War
II
–
and
particularly
to
a
heavy
reliance
on
the
burning
of
fossil
fuels.
Without
immediate
and
rapid
reductions
in
GHG
emissions,
which
are
associated
with
fossil
fuel
use,
global
aggregate
temperatures
are
predicted
to
rise
by
as
much
as
6.4
degrees
over
the
1
This
paper
will
assume
that
the
scientific
consensus
is
well
grounded,
and
that
climate
change
is
an
inevitability;
all
that
can
be
determined
through
mitigation
and
adaptation
is
the
degree
to
which
human
societies
are
affected.
1

2. course
of
the
21st
century.2
The
impact
of
a
rise
greater
than
two
degrees
over
that
timeframe
would
be
catastrophic
for
human
societies
–
the
warming
of
oceans
and
the
melting
ice
caps
would
lead
to
the
destruction
of
coastal
cities
and
agricultural
areas,
as
well
as
an
increased
frequency
and
severity
of
extreme
weather
events
such
as
heat
waves
and
flooding.3
Developing
countries,
which
occupy
the
most
vulnerable
areas
of
the
planet,
and
which
are
strongly
dependent
upon
agricultural
production,
would
be
the
most
threatened
by
this
scenario.4
Accompanying
the
acceptance
that
industrial
development
is
the
source
of
the
climate
change
threat,
there
is
a
general
consensus
about
the
apportioning
of
blame.
As
noted
in
the
introduction
to
the
UNFCCC,
a
convention
with
195
state
parties
to
it,
the
‘largest
share
of
historical
and
current
global
emissions
of
greenhouse
gases
has
originated
in
developed
countries’.5
Indeed,
by
1997,
at
the
time
of
the
Kyoto
Protocol
negotiations,
developed
countries
were
responsible
for
an
estimated
72
per
cent
of
current
GHG
emissions,
as
well
as
86
per
cent
of
those
cumulatively
built
up
in
the
Earth’s
atmosphere.6
It
is
therefore
generally
accepted
that
causal
responsibility
unequally
falls
predominately
upon
developed
countries,
because
of
their
far
greater
use
of
emissions
driven
economic
growth.
2
Stephen
J.
Turner,
A
Substantive
Environmental
Right:
An
Examination
of
the
Legal
Obligations
of
Decision-­‐Makers
towards
the
Environment,
Alphen
aan
den
Rijn,
Kluwer
Law
International,
2009,
p.
60.
3
Katherine
Smits,
Applying
Political
Theory:
Issues
and
Debates,
Basingstoke,
Palgrave
Macmillan,
2009,
p.
233.
4
Ellen
Wiegandt,
‘Climate
Change,
Equity,
and
International
Negotiations’,
in
Urs
Luterbacher
and
Detlef
F.
Sprinz
(eds),
International
Relations
and
Global
Climate
Change,
Cambridge,
MIT
Press,
2001,
p.
137.
5
United
Nations,
United
Nations
Framework
Convention
on
Climate
Change,
GE.05-­‐62220
(E)
200795,
New
York,
1992,
p.
1,
retrieved
20
June
2011,
available
from
<
http://unfccc.int/essential_background/convention/background/items
/2853.php>.
For
a
list
of
Parties
to
the
Convention
and
ratification
details,
see
website
at
United
Nations
Framework
Convention
on
Climate
Change,
Status
of
Ratification,
retrieved
4
July
2011,
available
from
<http://unfccc.int/essential_
background/convention/status_of_ratification/items/2631.php>.
6
Ruchi
Anand,
International
Environmental
Justice:
A
North-­‐South
Dimension,
Burlington,
Ashgate,
2003,
p.
29
2

3. Importantly,
developed
countries
have
benefited
heavily
from
their
use
of
practices
associated
with
GHG
emissions.
As
development
itself
is
inextricably
tied
to
the
current
modes
of
industrial
consumption
and
production,
and
the
GHG
emissions
associated
with
them,
developed
countries
have
achieved
far
higher
standards
of
living
than
those
prevailing
in
developing
countries.
Little
wonder
then
that
the
highest
emitters
account
for
over
80
per
cent
of
Gross
World
Product
(GWP).7
Yet,
as
access
to
the
absorptive
capacity
of
the
atmosphere
must
now
be
limited
if
catastrophe
is
to
be
avoided,
the
developmental
opportunities
of
the
Global
South,
who
are
already
well
behind
countries
of
the
Global
North,8
are
severely
restricted
by
this
imbalance
in
the
prior
use
of
a
common
resource.
So,
it
is
widely
acknowledged
that
inequalities
exist
in
the
apportionment
of
benefits
derived
from
GHG
emissions,
and
in
the
capacity
to
pay
for
mitigation
efforts.9
There
is,
on
the
other
hand,
little
agreement
regarding
the
‘fair’
and
‘equitable’
distribution
of
future
emission
entitlements.
If
developing
countries
are
to
grow
at
a
rate
sufficient
to
haul
their
populations
out
of
poverty,
their
emissions
will
necessarily
increase.
Limits
in
the
absorptive
capacity
of
the
atmosphere,
which
have
already
been
breached,
thus
dictate
that
the
developed
world
will
need
to
drastically
reduce
its
emissions
levels.
Yet
global
environmental
politics
is
currently
divided
across
a
fault
line
in
North-­‐South
relations.
Asymmetries
in
both
the
contributions
to,
and
the
benefits
derived
from,
GHG
emissions
serve
as
a
source
of
direct
confrontation,
with
common
conceptions
of
‘fair’
and
‘equitable’
being
seemingly
unattainable.10
Indeed,
the
7
GWP
is
equal
to
the
current
combined
capacity
of
all
of
the
world’s
economies,
developed
and
developing.
Ibid,
p.
29.
8
The
term
‘South’
represents
not
just
a
geographical
definition
of
developing
countries
(Africa,
South
America,
Asia),
but
also
reflects
the
‘common
experiences
of
people
in
these
countries
as
a
result
of
historically
determined
social
and
economic
conditions
resulting
from
their
colonial
and
imperial
past’.
These
experiences
have
left
the
‘South’
economically
and
political
weak,
though
to
varying
degrees,
in
comparison
to
the
developed
countries
of
the
‘North’.
Ibid,
p.
1.
9
Peter
Singer,
‘One
Atmosphere’,
in
Stephen
M.
Gardiner
et
al.
(eds),
Climate
Ethics:
Essential
Readings,
Oxford,
Oxford
University
Press,
2010,
p.
188.
10
Anand,
International
Environmental
Justice,
pp.
2-­‐3.
3

4. inherent
lack
of
agreement
on
what
constitutes
fairness
and
equity
in
emissions
distribution
between
the
parties
to
the
Kyoto
Protocol
was
at
the
core
of
the
negotiation’s
overall
failure.11
It
was
within
this
context
of
North-­‐South
division
that
the
principle
of
CBDR
was
forged.
Given
the
differentiation
in
responsibilities,
benefits,
and
capacities
described
above,
the
concept
of
CBDR,
taken
at
face
value,
imposes
justice
requirements
on
the
distribution
of
access
to
the
‘global
commons’,12
and
specifically
to
emissions
entitlements.
Nevertheless,
the
lack
of
normative
agreement
between
the
parties
means
that
what
counts
as
fair
and
equitable
is
highly
controversial.13
Consensus
on
current
and
future
emissions
entitlements
is
critical,
not
least
because
the
threat
is
so
great,
but
also
because
there
are
no
boundaries
between
ecological
spaces.
As
a
result,
states
are
facing
the
consequences
of
actions
of
others,
while
being
incapable
of
dealing
with
them
independently.
Although
this
situation
creates
an
incentive
to
cooperate,
any
agreement
perceived
as
unfair
by
either
party
will
neither
be
signed
by
all,
nor
implemented
by
any.14
It
is
to
the
attempts
to
manufacture
consensus
(through
international
climate
regimes)
on
fair
and
equitable
distributions
that
we
know
turn.
11
Leigh
Raymond,
Differential
Treatment
in
International
Environmental
Law,
Oxford,
Oxford
University
Press,
2006,
p.
4.
12
Strictly
speaking,
the
phrase
‘global
commons’
is
somewhat
of
a
misnomer,
as
it
refers
to
property
owned
in
common,
whereas
the
atmosphere
is
a
resource
beyond
any
such
ownership.
As
Raymond
points
out,
‘global
open-­‐access
resource’
would
be
more
accurate,
but
as
‘global
commons’
is
the
accepted
term,
it
shall
be
used
here.
Ibid,
p.
3.
13
Raymond,
Differential
Treatment,
p.
4.
14
Lavanya
Rajamani,
‘The
Principle
of
Common
but
Differentiated
Responsibility
and
the
Balance
of
Commitments
under
the
Climate
Regime’,
Reciel,
Vol.
9,
No.
2,
2000,
pp.
121-­‐122.
4

5. The
UNFCC
and
the
Kyoto
Protocol
The
UNFCCC
was
established
in
June
1992
at
the
United
Nations
(UN)
Conference
on
Environment
and
Development
in
Rio
de
Janeiro.
The
Convention,
an
‘overall
framework
for
intergovernmental
efforts
to
tackle
climate
change’,15
strove
to
limit
the
amount
of
GHG
emissions
flowing
into
the
atmosphere
through
voluntary
reductions
to
levels
equal
to
a
baseline
year
of
1990.16
Such
action
was
deemed
necessary
if
the
dangerous
effects
of
anthropogenic
climate
change
were
to
be
mitigated,
and
the
benefits
of
the
environment
were
to
flow
to
current
and
future
generations.17
Article
3.1
of
the
Convention
determined
that
emissions
reductions
were
to
be
undertaken
‘on
the
basis
of
equity
and
in
accordance
with
[Parties’]
common
but
differentiated
responsibilities
and
respective
capabilities’,
with
‘the
developed
country
Parties
[to]
take
the
lead
in
combating
climate
change’.18
Despite
the
underlying
disagreements
discussed
above,
the
Convention
enjoys
near
universal
membership
amongst
both
developed
and
developing
countries.19
CBDR,
as
set
out
in
article
3.1,
refers
to
differentiation
under
two
headings:
the
contribution
to
the
problem,
and
the
capacity
or
resources
to
15
Taken
from
website,
see
United
Nations
Framework
Convention
on
Climate
Change,
The
United
Nations
Framework
on
Climate
Change,
retrieved
4
July
2011,
available
from
<http://unfccc.int/essential_background/convention/
items/2627.php>.
16
See
article
4.2
(b).
United
Nations,
United
Nations
Framework,
p.
7.
17
See
article
2
for
the
framework’s
overall
objective.
United
Nations,
United
Nations
Framework,
p.
4.
This
paper
will
not
be
concerned
with
the
entitlements
of
future
generations,
though
there
is
lively
debate
on
this
issue,
partly
because
it
is
beyond
its
scope,
and
partly
as
for
future
generations
to
have
any
claims
to
entitlements,
it
must
first
be
shown
that
current
generations
have
the
same
claims.
David
Miller,
‘Social
Justice
and
Environmental
Goods’,
in
Andrew
Dobson
(ed.),
Fairness
and
Futurity:
Essays
on
Environmental
Sustainability
and
Social
Justice,
Oxford,
Oxford
University
Press,
1999,
p.
153.
18
United
Nations,
United
Nations
Framework,
p.
4.
CBDR
also
formed
Principle
7
of
the
Rio
Declaration,
released
following
the
Conference.
See
United
Nations,
Rio
Declaration
on
Environment
and
Development,
U.N.
Doc.
A/CONF.151/26
(1992),
New
York,
retrieved
5
July
2011,
available
from
<http://www.un.org/
documents/ga/conf151/aconf15126-­‐1annex1.htm>.
19
Lavanya
Rajamani,
Differential
Treatment
in
International
Environmental
Law,
Oxford,
Oxford
University
Press,
2006,
pp.
58-­‐59.
5

6. undertake
response
measures.20
Differentiation
itself,
in
international
law,
though
seemingly
awkward
given
the
fundamental
principle
of
the
equal
sovereignty
of
states,
is
not
new.
For
instance,
the
five
permanent
members
of
the
UN
Security
Council
have
different
voting
powers
to
the
other
ten
non-­‐
permanent
members,
and
in
many
international
financial
institutions
voting
is
weighted
on
the
basis
of
income
levels.
Differentiation
thus
recognises
that
in
substantive
terms,
such
as
size,
development,
resources,
and
political
power,
countries
are
in
reality
unequal.21
Yet,
though
a
principle,
CBDR
is
not
to
be
considered
a
binding
rule
necessitating
predetermined
action,
but
rather
a
guide
or
aim.
As
such,
both
lines
of
differentiation
are
open
to
interpretation
or
even
outright
reformulation.22
Aside
from
setting
out
the
principle
of
CBDR,
the
Convention
contains
several
other
components
of
importance
here.
Firstly,
given
the
near
universal
status
of
the
UNFCCC,
article
4.2
(a)
of
the
Convention
represents
the
first
full
admission
of
responsibility
for
the
threat
of
climate
change
on
the
part
of
developed
countries.23
Under
it,
they
are
committed
to
taking
the
lead
role
via
national
policies
towards
the
reduction
of
GHG
emissions,
and
the
protection
of
carbon
sinks.24
Secondly,
article
4.7
obliges
developing
countries
to
take
similar
action
dependent
upon
the
provision
by
developed
countries
of
‘financial
resources
and
transfer
of
technology’,
and
recognises
that
‘economic
and
social
development
and
poverty
eradication’
are
their
overriding
priorities.25
Thirdly,
while
it
is
clear
from
the
Convention
that
developed
countries
are
responsible
for
the
primary
costs
of
mitigation
efforts,
the
grounding
of
this
duty
in
their
historical
responsibility
for
climate
change
is
only
(weakly)
alluded
to.
For
20
Ibid,
p.
130.
21
Sumudu
Atapattu,
Emerging
Principles
in
International
Environmental
Law,
Ardsley,
Transnational
Publishers,
2006,
pp.
379-­‐381.
22
This
is
despite
the
use
of
obligatory
language
(Parties
‘shall’),
see
Rajamani,
‘The
Principle
of
Common
but
Differentiated
Responsibility’,
p.
124;
and
Rajamani,
Differential
Treatment,
p.
192.
23
Chukwumerije
Okereke,
Global
Justice
and
Neoliberal
Environmental
Governance:
Ethics,
Sustainable
Development
and
International
Co-­‐operation,
New
York,
Routledge,
2007,
p.
110.
24
See
article
4.2
(a).
United
Nations,
United
Nations
Framework,
p.
6.
25
United
Nations,
United
Nations
Framework,
p.
8.
6

7. example,
the
Polluter
Pays
Principle
(PPP),
mentioned
in
Principle
16
of
the
Rio
Declaration
released
following
the
conference,
is
not
mentioned
in
the
Convention.26
Rather,
the
Convention
is
couched
in
language
that
indicates
mitigation
is
related
to
the
ability
to
pay.27
As
a
result
of
this
indeterminacy,
different
interpretations
of
the
Convention’s
meaning
have
been
pushed
by
both
developed
and
developing
countries;
for
the
former,
burdens
are
linked
to
capacity
to
pay;
for
the
latter,
to
historical
causality.28
Once
the
UNFCCC
was
brought
into
force
on
21
March
1994,29
regular
Conference
of
the
Parties
(COP)
meetings
were
held
to
assess
progress
in
its
implementation.
COP-­‐1,
held
in
Berlin
in
1995,
decided
voluntary
reductions
were
not
achieving
the
desired
reductions,
and
that
binding
targets
would
be
needed.30
Subsequently,
at
COP-­‐3,
held
in
Kyoto,
Japan,
a
Protocol
agreement
was
added
to
the
UNFCCC
which
mandated
compulsory
reduction
targets.31
As
part
of
a
reaffirmation
of
CBDR,
the
Kyoto
Protocol
assigned
such
targets
to
37
developed
countries,
with
developing
countries
excluded
from
any
immediate
reductions.32
For
the
former,
an
aggregate
target
of
a
five
per
cent
reduction
below
1990
levels,
to
be
achieved
by
2012,
was
set,
with
individual
targets
26
See
United
Nations,
Rio
Declaration.
The
PPP
was
originally
developed
by
the
Organization
for
Economic
Co-­‐operation
and
Development
as
an
economic
tool
for
internalizing
environment
externalities
(environmental
degradation)
into
transaction
costs.
It
has
since
taken
on
broader
meanings
of
historical
responsibility
for
past
pollution,
and
compensation
related
to
it,
finding
its
way
into
legal
documents.
Not
until
the
Rio
Declaration,
however,
did
it
have
any
universal
application.
Atapattu,
Emerging
Principles,
p.
440.
27
Rajamani,
Differential
Treatment,
p.
191-­‐193.
See,
in
particular,
article
4.2
(a).
United
Nations,
United
Nations
Framework,
p.
6.
28
Okereke,
Global
Justice,
pp.
111-­‐112.
29
Taken
from
website,
see
United
Nations
Framework
Convention
on
Climate
Change,
The
United
Nations
Framework
on
Climate
Change.
30
Stephen
M.
Gardiner,
‘Ethics
and
Global
Climate
Change’,
in
Stephen
M.
Gardiner
et
al.
(eds),
Climate
Ethics:
Essential
Readings,
Oxford,
Oxford
University
Press,
2010,
p.
19.
31
Taken
from
website,
see
United
Nations
Framework
Convention
on
Climate
Change,
Kyoto
Protocol,
retrieved
5
July
2011,
available
from
<http://unfccc.int/
kyoto_protocol/items/2830.php>.
32
Countries
were
separated
into
two
groups:
Annex
I
(all
developed
countries),
and
non-­‐Annex
I
(developing
countries).
Michael
Grubb,
‘Seeking
Fair
Weather:
Ethics
and
the
International
Debate
on
Climate
Change’,
International
Affairs,
Vol.
71,
No.
3,
1995,
p.
479.
7

8. varying
considerably.33
Recognizing
the
difficulties
associated
with
rapid
decreases
in
emissions
rates,
the
Protocol
also
allowed
for
an
emissions
trading
scheme.34
Naturally,
and
rightly,
the
developing
countries
felt
they
were
exempt
from
any
immediate
reductions,
and
could
develop
in
an
unrestricted
manner,
at
least
as
regards
GHG
emissions.
For
the
United
States
(US),
then
the
biggest
emitter,
this
was
unacceptable.35
The
US,
under
the
Clinton
administration,
had
recognised
the
principle
of
CBDR,
but
demanded
that
developing
countries
would
take
on
some
responsibility
for
reductions,
commensurate
to
their
capacities,
and
rejected
outright
any
suggestion
of
rapid
reductions
based
upon
historical
use
or
culpability.36
Arising
out
of
these
objections,
supported
by
many
other
developed
countries,
the
Kyoto
Protocol
did
reflect
differing
capabilities
rather
than
becoming
an
indictment
of
unstainable
lifestyles
or
past
emissions.37
Yet,
the
US,
by
the
time
of
ratification
under
the
George
W.
Bush
administration,
still
refused
to
ratify
the
treaty
on
the
basis
that
it
was
‘unfair’
because
of
what
the
Senate
termed
a
‘disparity
of
treatment’
between
the
parties.38
Though
the
Kyoto
Protocol
staggered
into
effect
in
February
2005,39
following
at
times
torturous
negotiations,
overriding
agreement
on
ideas
of
33
The
US
and
EU
were
assigned
targets
of
7
and
8
percent
respectively,
and
Australia
was
granted
a
small
increase,
for
example.
Singer,
‘One
Atmosphere’,
p.
185.
34
Ibid.
35
Bradley
C.
Parks
and
J.
Timmons
Roberts,
A
Climate
of
Injustice:
Global
Inequality,
North-­‐South
Politics,
and
Climate
Policy,
Cambridge,
MIT
Press,
2007,
p.
3.
36
Paul
G.
Harris,
‘Common
but
Differentiated
Responsibility:
The
Kyoto
Protocol
and
United
States
Policy’,
N.Y.U.
Environmental
Law
Journal,
Vol.
7,
1999,
pp.
46-­‐
47.
37
Grubb,
‘Seeking
Fair
Weather’,
p.
478-­‐479.
38
Steve
Vanderheiden,
‘Climate
Change,
Environmental
Rights,
and
Emissions
Shares’,
in
Steve
Vanderheiden
(ed.),
Political
Theory
and
Global
Climate
Change,
Cambridge,
MIT
Press,
2008,
p.
43.
39
Currently,
the
Kyoto
Protocol
has
193
parties
to
it,
including
Australia.
For
a
complete
list,
and
details
on
stages
of
ratification
see
website
at
United
Nations
Framework
Convention
on
Climate
Change,
Status
of
Ratification,
retrieved
5
July
8

9. fairness
or
equity
cannot
be
said
to
have
driven
the
process
itself.40
The
negotiations
were
not
based
upon
generally
agreed
principles
of
fairness
or
equity,
but
on
political
considerations
fuelled
by
self-­‐interest.
The
end
result
of
backroom
bargaining,
the
Protocol
itself
represents
the
relative
power
relations
within
the
international
system
more
than
any
consistent
ethical
notions.
Little
wonder
then
that
reductions
have
been
minimal
at
best,
and
that
the
COP
meetings
following
the
agreement
have
made
only
token
progress.41
Rather
than
being
a
guide
to
how
future
emissions
entitlements
should
be
distributed,
the
CBDR
principle
was
diluted
by
political
reality.
Historical
Approaches
to
Justice
In
addressing
the
question
of
how
CBDR
should
guide
the
distribution
of
emission
entitlements
now
and
into
the
future,
developing
countries
argue
that
historical
responsibility
must
be
taken
into
account.
Arguably,
the
philosophical
basis
for
CBDR
can
be
located
in
the
first
of
Henry
Shue’s
principles
of
equity:
When
a
Party
has
in
the
past
taken
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
should
burdens
that
are
unequal
at
least
to
the
extent
of
the
unfair
advantage
previously
taken,
in
order
to
restore
equality.42
2011,
<http://unfccc.int/kyoto_protocol/status_of_ratification/items/
2613.php>.
40
Singer,
‘One
Atmosphere’,
p.
185.
41
Witness
the
failure
to
reach
even
the
modest
targets
of
the
Kyoto
Protocol,
and
the
of
the
Copenhagen
(COP-­‐15)
negotiations.
Tuula
Honkonen,
The
Common
but
Differentiated
Responsibility
Principle
in
Multilateral
Environmental
Agreements:
Regulatory
and
Policy
Aspects,
Alphen
aan
den
Rijn,
Kluwer
Law
International,
2009,
p.
128.
42
Henry
Shue,
‘Global
Environment
and
International
Inequality’,
International
Affairs,
Vol.
75,
No.
3,
1999,
p.
531.
9

10. Therefore,
equity
would
seem
to
require
that
developed
countries
take
unequal
burdens
commensurate
to
their
unfair
use
of
the
absorptive
capacity
of
the
atmosphere
in
the
past.43
The
so-­‐called
‘Brazil
proposal’
is
the
most
emblematic
of
historical
emissions
claims
put
forward
thus
far
by
developing
countries.
Proposed
by
the
Brazil
delegation
at
the
time
of
the
Kyoto
Protocol
negotiations,
it
suggested
that
the
cumulative
effects
of
past
emissions
dating
back
to
1840
be
linked
to
specific
countries
such
that
they
may
be
held
accountable
for
their
historical
responsibilities
for
anthropogenic
climate
change.44
In
response,
an
ad
hoc
group,
the
Modelling
and
Assessment
of
Contributions
to
Climate
Change
was
created
under
the
UNFCCC
to
test
and
improve
the
scientific
basis
for
such
claims.
Yet
uncertainties
related
to
historical
climate
modelling,
and
the
necessity
of
arbitrary
decisions
on
the
allocation
of
relative
emissions
and
time-­‐
series
to
particular
countries,
undermined
the
objectivity
of
the
process.45
It
remains,
at
the
present
level
of
scientific
capabilities,
a
very
difficult
task
to
allocate
direct
responsibility
for
a
particular
amount
of
emissions
(and
a
corresponding
amount
of
climate
change).
Climate
change
is
not
traced
to
a
level
of
GHG
emissions
in
any
particular
year,
but
due
to
the
build
up,
over
time,
of
carbon
in
the
atmosphere.46
And
while
causal
responsibility
may
be
clear
in
an
overall
sense,
the
direct
linking
of
cumulative
emissions
to
particular
states/individuals/regions
is
far
more
complex.47
43
Rajamani,
‘The
Principle
of
Common
but
Differentiated
Responsibility’,
pp.
121-­‐122.
44
Gosseries,
‘Historical
Emissions
and
Free-­‐Riding’,
Ethical
Perspectives,
Vol.
11,
No.
1,
2004,
p.
37.
45
Christine
Ellermen
et
al.,
‘Differentiating
(Historic)
Responsibilities
for
Climate
Change,
Climate
Policy,
Vol.
9,
2009,
pp.
594-­‐595.
46
Wiegandt,
‘Climate
Change’,
p.
134.
47
Edward
A.
Page,
‘Distributing
the
Burdens
of
Climate
Change’,
Environmental
Politics,
Vol.
17,
No.
4,
2008,
pp.
558-­‐559.
10

11. Nevertheless,
historical
responsibility
continues
to
be
an
important
consideration
in
any
allocation
of
future
emission
entitlements.48
As
Peter
Singer
argued,
we
must
ask
‘[a]re
the
parties
entitled,
by
an
originally
justifiable
acquisition
and
a
chain
of
legitimate
transfers,
to
the
holdings
they
have
now?’
If
this
is
not
the
case,
as
it
clearly
is
not,
some
form
of
rectification
or
compensation
is
required.49
Such
an
undertaking
is
supported
by
the
PPP,
and
rightly
so,
lest
we
privilege
the
actions
of
the
past
over
current
and
future
generations.50
After
all,
the
denial
of
historical
responsibility
(or
‘grandfathering’)51
is
no
small
matter
in
terms
of
actual
distribution.
As
Müller
demonstrated,
using
various
data
sources
on
past
emissions,
and
allocations
formed
using
a
baseline
year
of
1990,
the
burdens
imposed
on
the
US
and
the
European
Union
(EU)
would
fall
by
one-­‐fifth,
while
China’s
would
double
and
India’s
triple.52
Grandfathering
is
defended
on
several
grounds,
by
developed
countries
and
commentators
alike.
Firstly,
it
is
argued
that,
having
obtained
higher
levels
of
emissions
already,
developed
countries
are
now
entitled
to
them.
This
argument
rests,
however,
on
a
conception
of
GHG
emissions
as
some
form
of
private
property,
which
considering
the
common
nature
of
the
Earth’s
atmosphere
is
blatantly
false.
Even
was
this
not
the
case,
as
Singer
has
argued,
the
developed
countries
through
their
past
emission
rates
have
neither
left
‘enough
for
the
good’,
nor
benefited
the
poor
in
any
concrete
sense.53
Moreover,
there
is
a
fundamental
irony
to
such
claims:
developed
countries
demand
that
48
Grubb,
‘Seeking
Fair
Weather’,
p.
474.
49
Singer,
‘One
Atmosphere’,
p.
187.
50
Eric
Neumayer,
‘In
Defence
of
Historical
Accountability
for
Greenhouse
Gas
Emissions’,
Ecological
Economics,
Vol.
33,
2000,
pp.
187-­‐188.
51
Grandfathering
is
the
creation
of
rules
for
a
previous
or
existing
situation,
while
applying
separate
rules
for
future
situations.
Lukas
H.
Meyer
and
Dominic
Roser,
‘Distributive
Justice
and
Climate
Change:
The
Allocation
of
Emissions
Rights’,
Analyse
und
Kritik,
Vol.
28,
No.
2,
2006,
pp.
229.
52
Ellermen
et
al.,
‘Differentiating
(Historic)
Responsibilities’,
pp.
603-­‐604.
53
Meyer
and
Roser,
‘Distributive
Justice’,
pp.
229-­‐331.
The
term
‘enough
for
the
good’
comes
from
John
Locke
and
his
justification
for
private
property
in
Second
Treatise
on
Civil
Government
of
1690.
In
it,
Locke
argues
that
the
Earth
and
its
contents
‘belong
to
mankind
in
common’.
But
through
the
use
of
human
labour
in
combination
with
the
land,
we
can
appropriate
the
commons,
thereby
transforming
it
into
private
property.
This
is
acceptable
so
long
as
there
remains
‘enough
for
the
good’.
Singer,
‘One
Atmosphere’,
p.
187.
11

12. historical
responsibility
for
built
up
emissions
be
taken
off
the
table,
while
simultaneously
pushing
for
recognition
of
greater
entitlement
based
upon
those
historic
emissions.54
Fairness
and
equity
should
be
consistent,
a
requirement
which
arguments
along
this
line
clearly
violate.
A
second
and
more
robust
defence
of
grandfathering
can
be
mounted
on
the
basis
of
ignorance;
past
generations
were
not
aware
of
the
dangers
of
GHG
emissions,
and
therefore
current
generations
cannot
be
held
accountable.
For
this
reason,
a
baseline
year
of
1990
was
chosen
as
it
coincides
with
the
publication
of
the
first
International
Panel
on
Climate
Change
(IPCC)
report
and
general
public
awareness.55
As
Aristotle
argued,
blame
and
praise
are
only
attributed
to
voluntary
actions,
the
conditions
of
which
are
control
and
knowledge
of
consequences,
clearly
denied
to
current
inhabitants
of
developed
countries.56
Yet
it
is
an
established
principle
of
almost
every
legal
system
currently
operating
that
ignorance
does
not
exempt
liability
in
civil
law,
or
debar
punishment
in
criminal
law.
More
importantly,
rather
than
being
about
‘blame
or
collective
guilt’,
the
UNFCCC
should
be
about
assigning
an
equitable
share
of
the
absorptive
capacity
of
the
atmosphere
to
everyone.
Turning
to
Aristotle
again:
that
the
proportionate
treatment
of
unequals
is
as
important
as
the
proportionate
treatment
of
equals.57
Therefore,
as
the
initial
distribution
of
emissions
has
led
to
inequality,
historical
emissions
must
be
taken
into
account
if
overall
equality
is
to
be
achieved.58
54
Rajamani,
Differential
Treatment,
p.
142.
55
The
first
warning
of
the
possibility
of
anthropogenic
climate
change
dates
back
to
1896
and
Svante
Arrhenius’s
On
the
Influence
of
Carbonic
Acid
in
the
Air
upon
the
Temperature
on
the
Ground,
but
it
is
fair
to
say
that
before
the
mid-­‐1980s
public
awareness
was
minimal.
Neumayer,
‘In
Defence
of
Historical
Accountability’,
p.
188.
56
Ellermen
et
al.,
‘Differentiating
(Historic)
Responsibilities’,
p.
595.
57
Honkonen,
The
Common
but
Differentiated
Responsibility
Principle,
p.
11.
58
Neumayer,
‘In
Defence
of
Historical
Accountability’,
pp.
188-­‐190.
12

13. A
corollary
to
the
ignorance
argument
can
be
mounted
on
the
basis
that,
regardless
of
past
unawareness,
the
inhabitants
of
developed
countries
were
powerless
by
virtue
of
their
non-­‐contemporaneity.
Simon
Caney
has
argued
this
point
strongly
elsewhere,
claiming
that
it
is
unjust
to
force
those
who
didn’t
pollute
to
pay
now
as
they
would
be
suffering
beyond
their
due.59
Non-­‐
reciprocity
between
past
and
current
generations,
however,
does
not
mean
that
no
duties
arise,
whether
actions
were
unintentional
or
not.60
For
those
living
today
in
developed
countries
certainly
enjoy
the
benefits
of
past
emissions,
denied
to
developing
countries,
regardless
of
whether
knowledgeable
harm
was
in
fact
caused.61
Following
John
Rawls,
‘[t]he
life
of
a
people
is
conceived
as
a
scheme
of
cooperation
spread
out
in
historical
time’.62
The
benefits
received
from
their
forebears
are
therefore
filled
with
a
consequent
liability
that
cannot
be
denied.63
Many
commentators
have
also
argued
that
historical
responsibility
should
be
denied
on
the
basis
of
the
non-­‐identity
problem,
originally
put
forward
by
Derek
Parfit
in
relation
to
future
generations.
This
proposition
avers
that
policies
with
far
reaching
social
effects,
such
as
those
that
would
be
related
to
reducing
emissions,
not
only
impact
on
their
objectives,
but
on
the
identities
of
those
who
are
not
yet
born.
So
if
a
country
chooses
to
pursue
climate
policy
A,
which
causes
ecological
devastation
and
the
birth
of
person
a,
over
climate
policy
B,
which
protects
the
environment
and
results
in
the
birth
of
person
b,
person
a
cannot
claim
to
have
been
harmed.
This
is
because
had
the
country
chosen
climate
policy
B
they
would
not
exist
today.64
But
does
this
indeterminacy
really
matter?
People
come
into
existence
during
the
normal
course
of
events
and,
though
we
may
not
know
their
identity,
59
Simon
Caney,
‘Cosmopolitan
Justice,
Responsibility,
and
Global
Climate
Change’,
Leiden
Journal
of
International
Law,
Vol.
18,
2005,
pp.
758-­‐760.
60
Page,
‘Distributing
the
Burdens’,
pp.
563-­‐564.
61
Gosseries,
‘Historical
Emissions’,
pp.
40-­‐43.
62
John
Rawls,
A
Theory
of
Justice,
Cambridge,
Harvard
University
Press,
1971,
p.
289.
63
Rajamani,
Differential
Treatment,
p.
140.
64
Meyer
and
Roser,
‘Distributive
Justice’,
pp.
240-­‐247.
13

14. or
their
specific
interests,
we
can
be
certain
that
they
will
have
interests
that
can
be
harmed.
One
would
reasonably
assume,
moreover,
that
whoever
comes
into
existence
would
wish
for
a
habitable
planet,
by
virtue
of
existing
in
the
first
place.65
This
argument
carries
far
more
weight
when
current
generations
are
considering
the
effect
of
climate
policies
on
those
yet
to
be
born.
To
deny
historical
responsibility
for
decisions
already
made,
on
the
basis
that
our
existence
is
dependent
upon
them
is,
however,
spurious.
A
third
argument
put
forward
in
relation
to
historical
responsibility
contends
that
developing
countries
have
actually
benefited
from
historical
emissions.
It
is
argued
that
advances
in
medicine
and
technology,
for
example,
would
not
have
been
passed
on
to
developing
countries
without
past
emissions.
But
this
benefit
is
infinitely
difficult
to
quantify.
It
is
also
debatable
how
much
of
this
transference
was
in
fact
more
to
the
benefit
of
developed
countries,
especially
considering
the
dire
situation
of
many
current
developing
countries.
Certainly,
the
preponderance
of
those
benefits
in
medicine
and
technology
has
flowed
to
developed
countries
themselves.66
Lastly,
it
is
argued
that
past
emissions
cannot
be
attributed
to
specific
developed
countries
due
to
boundary
changes.
This
argument,
on
practical
grounds,
points
to
the
break
up
of
the
Soviet
Union,
and
changes
in
the
EU,
for
example,
as
a
reason
for
excluding
them
from
historical
responsibility.
Yet
the
boundaries
of
the
major
emitters,
such
as
Western
Europe,
North
America,
Japan
and
Australia
(on
a
per
capita
basis),
have
remained
relatively
consistent
over
this
time,
or
at
least
during
the
century
preceding
the
1990
baseline
year.67
The
denial
of
historical
responsibility
is
akin
to
free-­‐riding
on
emissions;
that
is,
while
actions
benefit
an
individual
or
a
community,
the
costs
are
apportioned
to
a
third
party.
So
people
from
the
US
are
receiving
the
benefits
of
past
generations,
while
the
costs
are
being
put
upon
people
in
the
developing
65
Katherine
Smits,
Applying
Political
Theory,
p.
243
66
Neumayer,
‘In
Defence
of
Historical
Accountability’,
p.
189.
67
Ibid,
pp.
189-­‐190.
14

15. world.68
So,
although
current
emissions
are
of
the
greater
concern,
fairness
and
equity
dictate
that
historical
emissions
should
be
taken
into
account.69
To
do
so,
however,
means
that
developed
countries
would
have
to
reduce
their
emissions
immediately
and
drastically,
which
is
not
politically
realistic.
For
now
though,
it
is
important
to
remember
that,
firstly,
past
emissions
should
be
taken
into
account;
and,
secondly,
that
if
they
are
ignored
completely,
no
distribution
of
emissions
will
satisfy
developing
countries,
leading
to
their
defection
from
any
climate
regime.70
Alternative
Approaches
to
Justice
There
are
several
alternative
distribution
arrangements,
based
upon
alternative
conceptions
of
justice,
which
do
not
take
historical
responsibility
into
account.
While
the
above
discussion
relates
to
retributive
justice,
and
the
assignment
of
responsibility
to
make
amends
for
past
wrongs,
distributive
justice
is
associated
with
the
allocation
of
costs
or
benefits
based
upon
some
measure
of
current
entitlement.71
Within
this
form
of
justice
there
are
three
levels
that
must
come
under
consideration;
firstly,
the
scope
of
justice
(or
the
‘whom’
or
‘which’
of
justice
–
humans,
non-­‐humans,
the
environment
etc.);
secondly,
the
shape
of
justice
(or
how
much
of
something
is
to
be
distributed);
and
thirdly,
the
currency
of
justice
(or
what
is
to
be
distributed
–
welfare,
resources,
access
to
resources
etc.).72
The
approaches
discussed
below
are
all
concerned
with
distribution
to
the
human
world.73
Where
they
differ
is
in
relation
to
the
shape
and
currency
of
justice.
68
Gosseries,
‘Historical
Emissions’,
pp.
48-­‐51.
69
Ibid,
p.
68.
70
Gardiner,
‘Ethics’,
p.
15.
71
Matthew
Paterson,
‘Principles
of
Justice
in
the
Context
of
Global
Climate
Change’,
in
Urs
Luterbacher
and
Detlef
F.
Sprinz
(eds),
International
Relations
and
Global
Climate
Change,
Cambridge,
MIT
Press,
2001,
pp.
121-­‐123.
72
Edward
E.
Page,
Climate
Change,
Justice,
and
Future
Generations,
Cheltenham,
Edward
Elgar,
2006,
pp.
50-­‐51.
73
The
assignment
of
rights
to
non-­‐human
entities
is
an
incredibly
complex
proposition
that
will
not
be
undertaken
here.
For
examples
of
arguments
related
to
such
an
imposition,
see
Tom
Regan,
‘The
Case
for
Animal
Rights,'
in
Peter
15

16.
Developing
countries,
for
their
part,
favour
the
allocation
of
per
capita
emissions.
Due
to
the
immediate
burden
to
be
placed
on
developed
countries,
however,
most
commentators
argue
that
tradeable
emissions
permits
should
be
used
to
ensure
a
path
to
equity
while
minimizing
cost.74
For
at
current
levels,
according
to
Peter
Singer,
equal
per
capita
emissions
would
amount
to
around
one
metric
tonne
per
year.
Currently,
the
US
emits
five
metric
tonnes
per
year,
and
Japan,
Australia
and
the
EU
all
range
between
1.6
and
4.2
metric
tonnes.
China
and
India,
the
heaviest
developing
world
emitters,
sit
at
around
0.76
and
0.29
metric
tonnes
respectively.75
The
drastic
change
that
immediate
reductions
to
per
capita
emissions
will
therefore
cause
has
led
for
calls
for
contraction
and
convergence.
Developed
by
the
Global
Commons
Institute,
contraction
and
convergence
proposes
that
countries
should
move,
over
time,
towards
equal
per
capita
emissions.
Therefore,
while
the
total
is
contracting,
per
capita
emissions
will
slowly
converge.76
The
above
distribution
relates
to
the
political
possibilities
as
they
currently
stand.77
Questions
of
how
CBDR
should
dictate
the
current
and
future
distribution
of
emissions
are
addressed
by
several
different
conceptions
of
justice,
two
of
which
will
be
examined
here:
consequentialist
theories
of
an
egalitarian
tendency,
and
rights-­‐based
theories.
The
former
attend
to
the
rightness
or
wrongness
of
a
situation
based
upon
its
outcome,
or
the
consequences
of
some
action
based
upon
a
measure
of
the
general
good
(welfare
for
example).
The
latter
concentrates
on
the
right
(basic
rights,
duties
Singer
(ed.),
In
Defence
of
Animals,
New
York,
Blackwell,
1985,
pp.
13-­‐26;
Catherine
Redgwell,
'Life,
the
Universe
and
Everything:
A
Critique
of
Anthropocentric
Rights,'
in
Alan
Boyle
and
Michael
Anderson
(eds),
Human
Rights
Approaches
to
Environmental
Protection,
Oxford,
Oxford
University
Press,
1996,
71-­‐88;
and
Christopher
D.
Stone,
Should
Trees
Have
Standing?:
Law,
Morality,
and
the
Environment,
Oxford,
Oxford
University
Press,
2010.
74
Paterson,
‘Principles
of
Justice’,
pp.
123-­‐125.
75
Gardiner,
‘Ethics’,
p.
16.
76
Madeleine
Heyward,
‘Equity
and
International
Climate
Change
Negotiations:
A
Matter
of
Perspective’,
Climate
Policy,
Vol.
7,
2007,
p.
526.
77
Henry
Shue,
‘Subsistence
Emissions
and
Luxury
Emissions’,
Law
&
Policy,
Vol.
15,
No.
1,
1993,
p.
49.
16

17. obligations
etc.)
over
the
good,
with
justice
being
measured
by
the
morality
of
the
actions
themselves.78
Broadly
speaking,
developing
countries
emphasise
the
rights-­‐based
approaches,
while
developed
countries,
seeking
to
minimise
burdens,
prefer
consequentialist
distributions.79
Consequentialist
and
Egalitarian
Distribution
This
approach,
adopted
by
Peter
Singer,
perceives
justice
as
the
need
to
maintain
or
create
a
desirable
set
of
affairs.
Value
is
therefore
located
in
the
maintenance
of
a
safe
and
healthy
environment,
for
all
to
enjoy
equally,
and
which
can
sustain
human
societies.
As
such,
it
is
argued,
distribution
that
assures
this
condition
is
a
universal
want,
stretching
across
both
developed
and
developing
countries.80
Singer
and
others
argue
that
the
Earth’s
ability
to
absorb
GHG
emissions
is
a
common
resource.
As
we
now
understand
this
resource
to
be
limited,
allocation
of
access
to
it
must
be
on
the
grounds
of
fairness.
Therefore,
harm
is
not
based
specifically
upon
historical
responsibility,
but
rather
the
deprivation
of
use
currently
in
effect
as
result
of
developed
country
dominance.81
Singer
uses
the
analogy
of
a
village
with
a
giant
sink
for
waste
disposal
to
illuminate
his
argument.
No
one
knows
what
happens
to
the
waste
when
it
is
placed
in
the
sink.
Though
all
use
the
sink,
some
of
the
villagers
consume
a
lot
and
hence
produce
a
large
amount
of
waste,
while
those
less
well-­‐off
produce
far
less
from
their
smaller
consumption.
This
initial
situation
is
of
little
concern,
because
we
do
not
know
where
the
waste
goes,
nor
is
there
any
apparent
limit
to
the
carrying
capacity
of
the
sink.
So
long
as
this
situation
remains
unchanged,
the
78
Jekwu
Ikeme,
‘Equity,
Environmental
Justice
and
Sustainability:
Incomplete
Approaches
in
Climate
Change
Politics’,
Global
Environmental
Change,
Vol.
13,
2003,
p.
196.
79
Ibid,
pp.
201-­‐202.
80
Simon
Caney,
‘Global
Distributive
Justice
and
the
Environment’,
in
Gert
Vershraegen
and
Ronald
Tinnevelt
(eds),
Between
Cosmopolitan
Ideals
and
State
Sovereignty:
Studies
in
Global
Justice,
New
York,
Palgrave
Macmillan,
2006,
pp.
54-­‐55.
81
Gardiner,
‘Ethics’,
p.
14.
17

18. well-­‐off
villagers
are
leaving
‘enough
for
the
good’.
If,
however,
conditions
change,
and
there
are
now
limits
to
the
carry
capacity
of
the
sink,
waste
begins
to
flow
into
the
water
supply.
Harm
is
therefore
caused
through
overuse
by
the
well-­‐off,
and
fairness
would
require
their
consumption
be
reduced
such
that
the
limits
are
not
breached,
and
the
sink
can
carry
the
waste
of
all.
For
Singer
then,
CBDR
should
dictate,
on
egalitarian
grounds,
that
equal
per
capita
emissions
are
distributed
in
order
to
avoid
a
tragedy
of
the
commons.82
This
approach
is
broadly
consistent
with
John
Rawls’
version
of
fairness.83
In
his
Theory
of
Justice,
Rawls
develops
the
notion
of
the
veil
of
ignorance,
behind
which
all
parties
are
ignorant
of
their
initial
position.
As
such,
inequalities
in
wealth,
power,
resources
and
the
like
are
not
known.
Hence,
given
‘the
appropriate
initial
status
quo’
the
‘fundamental
agreements
reached
[between
parties]
are
fair’.84
Each
party
will
be
persuaded
by
the
same
arguments,
through
feelings
of
‘constructive
empathy’,
and
will
take
all
interests
into
account,
including
those
of
the
worst
off.85
The
principles
of
justice
that
will
be
created
behind
this
veil
are
those
that
rational
persons
would
‘consent
to
as
equals
when
none
are
known
to
be
advantaged
or
disadvantaged
by
social
or
natural
contingencies’.86
Rawls’
theory
of
justice
is
therefore
in
line
with
the
above
approach,
as
it
would
dictate
that
existing
inequalities
would
be
compensated
by
future
equality
(equal
emissions),
unless
those
inequalities
are
suitable
for
the
worst
off.87
Egalitarian
arguments
are
attractive
when
applied
to
CBDR.
Egalitarianism
is
appealing,
because
it
implies
the
notion
that
no
one
owns
the
82
Singer’s
analogy
represents
a
classic
‘tragedy
of
the
commons’.
It
should
be
noted
that
he
does
accept
that
political
reality
would
dictate
that
a
transitional
period
prior
to
equal
per
capita
emissions
would
be
required.
Singer,
‘One
Atmosphere’,
pp.
185-­‐188.
83
Miller,
‘Social
Justice’,
pp.
156-­‐157.
84
Rawls,
A
Theory
of
Justice,
p.
12.
85
Ibid,
p.
139.
86
Ibid,
p.
19.
87
Honkonen,
The
Common
but
Differentiated
Responsibility
Principle,
pp.
83-­‐85.
18

19. atmosphere
and
so
its
distribution
should
be
equal.88
These
arguments
would
further
imply
that,
due
to
the
initial
inequality
of
emission
distribution,
developed
country
responsibility
for
reductions
would
be
matched
by
developing
country
allowances
for
increases.
Therefore,
as
Singer
points
out,
we
would
be
doing
what
is
best
for
the
atmosphere,
and
for
development,
which
is
what
should
occur.89
Rights-­‐Based
Theories
While
the
outcomes
of
consequentialist
theories
of
an
egalitarian
nature
are
arguably
what
should
occur,
they
do
not
adequately
address
the
‘rightness’
of
the
distributions
themselves.
Rights-­‐based
theories
look
to
determine
distribution
of
emissions
through
the
imposition
of
environmental
rights,90
thereby
providing
moral
backing
to
the
resulting
outcomes.
One
such
right,
forward
by
Henry
Shue,
is
the
right
to
emit
GHG.
Shue
believes
that
developing
countries
should
be
allowed
to
grow
enough
to
provide
a
minimum
standard
of
living,
or
subsistence,
for
those
within
their
countries.91
He
argues
that
even
in
an
‘emergency
one
pawns
the
jewellery
before
selling
the
blankets…whatever
88
Heyward,
‘Equity’,
p.
521.
There
are,
however,
theoretical
problems
with
the
egalitarian
approaches
to
consequentialism.
For
example,
in
a
world
of
the
blind
and
the
sighted,
we
would
have
to
argue
that
there
is
a
good
in
blinding
the
sighted
as
such
an
action
would
lead
to
more
equality.
A
situation
that
is
better
for
no
one
and
worse
for
some
is
still
better
for
all.
Yet,
clearly,
the
operationalization
of
egalitarianism
here
would
proceed
with
some
modicum
of
rational
thought,
indicating
the
avoidance
of
such
a
theoretical
situation.
Meyer
and
Roser,
‘Distributive
Justice’,
p.
234.
89
Singer,
‘One
Atmosphere’,
pp.
195-­‐197.
90
It
is
beyond
the
scope
of
this
paper
to
undertake
a
deeper
examination
of
arguments
related
to
the
imposition
of
broader
environmental
rights.
Discussion
of
this
issue
can
be
found,
for
example,
in
Sam
Adelman,
'Rethinking
Human
Rights:
the
Impact
of
Climate
Change
on
the
Dominant
Discourse,'
in
Stephen
Humphreys
(ed.),
Human
Rights
and
Climate
Change,
Cambridge,
Cambridge
University
Press,
2010,
pp.
159-­‐179;
Simon
Caney,
'Climate
Change,
Human
Rights,
and
Moral
Thresholds,'
in
Stephen
Humphreys
(ed.),
Human
Rights
and
Climate
Change,
Cambridge,
Cambridge
University
Press,
2010,
pp.
69-­‐90;
and
Robyn
Eckersley,
'Greening
Liberal
Democracy:
The
Rights
Discourse
Revisited,'
in
Brian
Doherty
and
Marius
de
Geus
(eds),
Democracy
and
Green
Political
Thought:
Sustainability,
Rights
and
Citizenship,
London,
Routledge,
1996,
pp.
212-­‐
236.
91
Shue,
‘Subsistence
Emissions’,
p.
42.
19

20. justice
may
positively
require,
it
does
not
permit
the
poor
to
sell
their
blankets
in
order
that
the
rich
nations
keep
their
jewellery’.92
As
a
result,
Shue
formulates
his
third
principle
of
fairness:
When
some
people
have
less
than
enough
for
a
decent
human
life,
other
people
have
far
more
than
enough,
and
the
total
resources
available
are
so
great
that
everyone
could
have
at
least
enough
without
preventing
some
people
from
still
retaining
considerably
more
than
others
have,
it
is
unfair
not
to
guarantee
everyone
at
least
a
minimum.93
On
this
basis,
Shue
argues
for
a
right
to
subsistence
emissions,
in
opposition
to
a
right
to
luxury
emissions.
Given
the
limits
to
the
atmosphere’s
ability
to
carry
GHG
emissions,
this
approach
would
require
that
CBDR
should
entail
the
reduction
of
developed
country
entitlements
to
accommodate
the
subsistence
of
developing
countries,
because
the
latter
have
rights
to
entitlements.94
But
this
approach
runs
into
two
major
difficulties.
Firstly,
what
amounts
to
subsistence
in
terms
of
GHG
emissions
is
difficult
to
assess
objectively,
and
may
well
change
with
time.
Secondly,
the
granting
of
a
right
to
subsistence
emissions
avoids
any
moral
assessment
of
current
modes
of
development,
and
effectively
locks
human
societies
into
their
use.95
The
need
for
GHG
emissions
is
inextricably
tied
to
industrial
society,
and
subsistence
has
and
can
be
met
without
them.
While
Shue
does
not
necessarily
assume
that
human
survival
depends
upon
emissions,
the
assumption
is
implicit
within
the
granting
of
a
right
to
emit.
Moreover,
emissions
themselves
have
caused
the
problem
in
which
humanity
currently
finds
itself.
If
such
a
right
is
granted,
moral
limits
to
their
inefficient
allocation
are
more
difficult
to
apply,
thereby
further
endangering
the
climate.
As
Stephen
Gardiner
points
out,
‘if
some
emissions
are
deemed
morally
92
Quoted
in
Grubb,
‘Seeking
Fair
Weather’,
p.
478.
93
Shue,
‘Global
Environment’,
p.
541.
94
Ibid.
95
Gardiner,
‘Ethics’,
p.
16.
20

21. essential,
then
they
may
have
to
be
guaranteed
even
if
this
leads
to
an
overall
allocation
over
the
scientific
optimum.’96
This
is
not
to
disregard
that
current
GHG
emissions
are
necessary
for
most
people’s
basic
needs.
But
it
is
not
the
act
of
emitting
itself
that
is
beneficial;
rather,
benefits
are
derived
from
modes
of
consumption
and
production
that
currently
involve
GHG
emissions.97
By
instituting
a
right
to
emit,
we
are
effectively
locked
into
historically
specific
forms
of
action
now,
and
into
the
future.98
Our
reliance
on
GHG
emissions
needs
to
be
altered
in
the
long-­‐term,
a
requirement
that
is
not
aided
by
accepting
a
right
to
emit.
In
the
short-­‐term,
developed
countries
need
to
acknowledge
that
they
have
derived
benefits
from
past
emissions,
which
fairness
and
equity
requires
be
shared.
This
should
lead
to
a
distribution
for
the
time
being
that
takes
historical
responsibility
into
account.99
Unfortunately,
contemporary
debates
have
moved
away
from
arguments
over
responsibilities,
to
the
apportionment
of
emission
rights.
As
a
result,
climate
negotiations
take
on
a
self-­‐interested
character,
with
competition
over
rights
proceeding
to
expansionary
demands
on
the
part
of
interested
groups.
Certainly,
a
limit
is
needed,
but
this
should
not
be
confused
with
an
inherent
right
to
emit.
Rather,
we
have
a
right
to
live
in
a
healthy
environment.
The
restrictions
imposed
by
this
right
are
far
more
valuable
than
a
right
to
emit
itself.100
Perhaps
the
concentration
on
distribution
is
then
misguided.
Given
the
irreversibility
of
climate
change,
justice
could
perhaps
best
be
achieved
by
avoiding
the
issue
altogether.101
The
political
reality
is,
however,
that
some
form
96
Tim
Hayward,
‘Human
Rights
versus
Emissions
Rights:
Climate
Justice
and
the
Equitable
Distribution
of
Ecological
Space’,
Ethics
&
International
Affairs,
Vol.
21,
No.
4,
2007,
pp.
440-­‐442.
97
Meyer
and
Roser,
‘Distributive
Justice’,
p.
227.
98
Hayward,
‘Human
Rights’,
pp.
440-­‐2.
99
Ibid,
pp.
432-­‐433.
100
Ibid,
pp.
435-­‐443.
101
Andrew
Dobson,
Justice
and
the
Environment:
Conceptions
of
Environmental
Sustainability
and
Theories
of
Distributive
Justice,
Oxford,
Oxford
University
Press,
1998,
pp.
223-­‐225.
21

22. of
distribution,
grounded
in
agreed
conceptions
of
fairness
and
equity,
needs
to
be
found
if
we
are
to
avoid
ecological
catastrophe.
CBDR
and
Political
Realities
Research
into
current
international
relations
systems
has
shown
that
any
agreement
on
this
issue
will
be
very
difficult
to
achieve,
largely
because
of
a
distinct
lack
of
consensus
on
what
is
fair,
equitable,
and
just,
meaning
that
any
drastic
reductions
seem
unlikely.
Hence
we
find
ourselves
in
the
midst
of
a
global
common
resource
and
collective
action
problem.102
It
is
the
very
inequality
of
the
initial
distribution
which
makes
it
hard
for
rich
and
poor,
developed
and
developing,
to
identify
socially
shared
understandings
of
‘fair’
and
‘equitable’.
Even
if
agreement
could
be
reached
on
such
basic
principles,
the
preference
differentiation
generated
by
inequality
creates
severe
disagreements,
as
we
have
seen,
on
the
operationalization
of
CBDR.103
Political
reality
then
dictates
that
what
should
guide
emissions
distribution
under
the
CBDR
principle
is
far
from
what
is
actually
possible.
As
the
absorptive
capacity
of
the
atmosphere
is
finite,
and
the
developed
countries
have
overused
their
share
of
that
resource,
it
is
reasonable
to
speak
of
an
ecological
debt
which
should
be
met.
Without
acknowledgment
of
this
fact,
developing
countries
will
never
accept
limits
to
their
growth
potential.104
A
direct
switch
on
egalitarian
grounds
would,
however,
have
grave
consequences
for
the
current
modes
of
consumption
and
production
that
would
be
impossible
to
stomach
for
developed
countries.105
As
George
H.
Bush
remarked
during
the
Rio
Conference,
the
‘American
lifestyle
is
not
open
to
negotiation’.106
The
most
likely
middle
ground,
therefore,
is
a
per
capita
allocation,
based
on
contraction
102
Aaron
Maltais,
‘Global
Warming
and
the
Cosmopolitan
Political
Conception
of
Justice’,
Environmental
Politics,
Vol.
17,
No.
4,
2008,
pp.
598-­‐599.
103
Parks
and
Roberts,
A
Climate
of
Injustice,
p.
27.
104
Hayward,
‘Human
Rights’,
p.
445.
105
Meyer
and
Roser,
‘Distributive
Justice’,
p.
228.
106
Parks
and
Roberts,
A
Climate
of
Injustice,
p.
4.
22