Ethical Values and the Integrity of the Climate Change Regime 9781315580302

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ETHICAL VALUeS AND THe INTeGRITY OF THe CLIMATe CHANGe ReGIMe

Law, Ethics and Governance Series Series Editor: Charles Sampford, Director, Institute for Ethics, Governance and Law, Griffith University, Australia Recent history has emphasised the potentially devastating effects of governance failures in governments, government agencies, corporations and the institutions of civil society. ‘Good governance’ is seen as necessary, if not crucial, for economic success and human development. Although the disciplines of law, ethics, politics, economics and management theory can provide insights into the governance of organizations, governance issues can only be dealt with by interdisciplinary studies, combining several (and sometimes all) of those disciplines. This series aims to provide such interdisciplinary studies for students, researchers and relevant practitioners. Recent titles in this series Rethinking International Law and Justice Edited by Charles Sampford, Spencer Zifcak and Derya Aydin Okur ISBN 978-1-4724-2668-0 International Rule of Law and Professional Ethics Edited by Vesselin Popovski ISBN 978-1-4724-2803-5 Responsibility to Protect and Sovereignty Edited by Charles Sampford and Ramesh Thakur ISBN 978-1-4094-3782-6 Protection of Refugees and Displaced Persons in the Asia Pacific Region Edited by Angus Francis and Rowena Maguire ISBN 978-1-4094-5540-0 Intellectual Liberty Natural Rights and Intellectual Property Hugh Breakey ISBN 978-1-4094-4711-5 Health Workforce Governance Improved Access, Good Regulatory Practice, Safer Patients Edited by Stephanie D. Short and Fiona McDonald ISBN 978-1-4094-2921-0 Fiduciary Duty and the Atmospheric Trust Edited by Ken Coghill, Charles Sampford and Tim Smith ISBN 978-1-4094-2232-7

Ethical Values and the Integrity of the Climate Change Regime

Edited by Hugh Breakey Griffith University, Australia Vesselin Popovski Jindal Global University, India ROWeNA MAGUIRe Queensland University of Technology, Australia

First published 2015 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2015 Hugh Breakey, Vesselin Popovski and Rowena Maguire. Hugh Breakey, Vesselin Popovski and Rowena Maguire have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Ethical values and the integrity of the climate change regime / by Hugh Breakey, Vesselin Popovski and Rowena Maguire. pages cm. -- (Law, ethics and governance) Includes bibliographical references and index. ISBN 978-1-4724-6959-5 (hardback) -- ISBN 978-1-4724-6960-1 (ebook) -- ISBN 978-1-4724-6961-8 (epub) 1. Climatic changes--Law and legislation--Congresses. 2. Environmental ethics--Congresses. I. Breakey, Hugh, editor. II. Popovski, Vesselin, editor. III. Maguire, Rowena, editor. K3585.5.A6E84 2015 179'.1--dc23

ISBN 978-1-472-46959-5 (hbk)

2015016912

Contents List of Figures and Tables List of Contributors   Acknowledgements   List of Abbreviations  

vii ix xv xvii

INTRODUCTORY FRAMEWORK 1

Ethical Values and the Global Carbon Integrity System   Rowena Maguire, David M. Douglas, Vesselin Popovski and Hugh Breakey

2

A Comprehensive Framework for Evaluating the Integrity of the Climate Regime Complex   Hugh Breakey and Tim Cadman



PART I 3

3

17

INJECTiNG ETHiCS iNTO GOVERNANCE ARRANGEMENTS



Mapping the Integrity of Differential Obligations within the United Nations Framework Convention on Climate Change   Rowena Maguire

4

Stakeholder Perspectives on the Integrity of the Climate Regime   Tim Cadman

5

How to Assure that Nations Consider Ethics and Justice in Climate Change Policy Formulation   Donald A. Brown

61

The Context-Integrity of the Global Carbon Regime: The Relevance and Impact of the World Trade Organization   Felicity Deane

73

6

31 43

PART II ETHiCS iN A DYNAMiC AND DECENTRALiZED WORLD 7

Top-Down Proposals for Sharing the Global Climate Policy Effort Fairly: Lost in Translation in a Bottom-Up World?   Jonathan Pickering

89

vi

Ethical Values and the Integrity of the Climate Change Regime

8

Reflecting Climate Change Impacts in Governance and Integrity System Design   105 Liese Coulter

9

Ethics and Governance in Climate Change Debate: The Need for an Institutional Shift from Nation-States to Individuals   Yugank Goyal

10

Polycentric Systems and the Integrity Approach   Anne Schwenkenbecher

119 131

PART III SOCiAL NORMS iN THE GLOBAL CONTEXT 11

Eco v. Ego: Non-Anthropocentric Ethic in Anthropocene Epoch   Vesselin Popovski

141

12

Still in Search of the Good Life   Charles Sampford

155

13

Two Epistemic Errors in the Climate Change Debate   David Coady

167

PART IV MARSHALLiNG HUMAN RiGHTS TO THE CAUSE 14

The Contribution of Human Rights to the Effectiveness and Integrity of the Global Carbon Regime   Bridget Lewis

179

Mary Robinson’s Declaration of Climate Justice: Climate Change, Human Rights and Fossil Fuel Divestment   Matthew Rimmer

189



The Ethical Responsibility of the Loss and Damage Mechanism: A Consideration of Non-Economic Loss and Human Rights   Andrea C. Simonelli

213

17

Heating up Climate Change Norms – Lessons from Human Rights   Hugh Breakey

15 16

Bibliography   Index  

225

239 267

List of Figures and Tables Figures 2.1 2.2

Integrity map of UNFCCC/climate regime   Integrity map of Clean Development Mechanism (CDM)  

22 24

4.1

Schematic outline of the climate regime  

44

Tables 4.1 4.2 4.3 4.4 4.5 4.6

Description of institutional elements commented on by interview subjects and their public institutional justification   List of interview questions   List of interview subjects by country   Interview subjects by grouping, category and interview location   List of questions and their relationship to integrity concepts relative to overall regime   Summary of results of interviewee perspectives on the integrity of UNFCCC and its institutional sub-components  

11.1 Disasters  

46 49 50 51 53 54 152

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List of Contributors Hugh Breakey is a Research Fellow at the Institute for Ethics, Governance and Law at Griffith University, Australia. He researches philosophical issues on the nature of human rights (especially security, intellectual and property rights) and other topics in political philosophy and professional and applied ethics. In his award-winning PhD dissertation, Hugh argued that natural Lockean rights limit the proper scope and strength of intellectual property rights. He has published in top law, philosophy and ethics journals, including The Modern Law Review, The Philosophical Quarterly and Social Theory and Practice. Hugh’s first book, Intellectual Liberty: Natural Rights and Intellectual Property, was published in 2012 by Ashgate. Hugh lead-authored Enhancing Protection Capacity, the policy guide on the Protection of Civilians and the Responsibility to Protect. In 2014, Hugh began a three-year research project into the ethical values implicated in international climate governance, funded by the Australian Research Council. Hugh is President of the Australian Association for Professional and Applied Ethics. Donald A. Brown is Scholar in Residence for Sustainability Ethics and Law and Professor, Widener University School of Law in Harrisburg Pennsylvania. At Widener he teaches International Environmental Law, Human Rights Law and Climate Change Law. He is also a part-time Professor, Nanjing University, Nanjing, China, where he lectures regularly on climate change ethics. He has also this past year been a visiting Professor, Nagoya University School of Law, Nagoya, Japan. He is also a contributing author to the Intergovernmental Panel on Climate Change (IPCC), 5th Assessment Report. Previously he was Associate Professor of Environmental Ethics, Science, and Law at the Pennsylvania State University where he taught interdisciplinary courses on climate change and sustainable development. Prior to that, he was an environmental lawyer for the states of Pennsylvania and New Jersey and Program Manager for United Nations Organizations at the United States Environmental Protection Agency’s Office of International Environmental Policy. In this position he represented US EPA negotiating sustainability issues at the United Nations including climate change, international water issues, biodiversity and Agenda 21. Donald has written extensively on climate change and sustainability issues and lectured on these matters in 35 countries. His most recent book, Navigating the Perfect Moral Storm, Climate Ethics, was published in November 2012 by Routledge, Earthscan. He has written over 160 books, book chapters and articles on environmental and sustainability ethics and law. He manages an awardwinning web site, EthicsandClimate.org, which examines ethical issues that arise in climate change policy formation. He holds a BS in Commerce and Engineering Sciences from Drexel University, a JD from Seton Hall University School of Law, and a MA in Liberal Studies majoring in philosophy and art from the New School University where he also was in the PhD Program in philosophy. Tim Cadman graduated from Girton College Cambridge and holds a Doctorate from the School of Government in the University of Tasmania. He is a Research Fellow in the Institute of Ethics, Governance and Law at Griffith University, and was previously Sustainable Business Fellow at the University of Southern Queensland. He is an Earth Systems Governance Fellow and lectures in politics, environmental policy and sustainability. He is a Member of the Australian Centre for

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Sustainable Business and Development, and is on the Editorial Board of the Journal of Sustainable Finance and Investment. He specializes in global environmental governance, natural resource management, climate change policy and responsible investment. His book Climate Change and Global Policy Regimes: Towards Institutional Legitimacy was published in the Palgrave Macmillan International Political Economy Series in 2013. He can be contacted via email on [email protected]. David Coady is a Senior Lecturer, Philosophy at the University of Tasmania. Most of his current research is in applied philosophy, especially applied epistemology He has published work on rumour, conspiracy theory, the blogsphere, Wikipedia, expertise, the metaphysics of causation, the philosophy of law, democratic theory, cricket ethics, the ethics of horror films, police ethics and climate change. He is the author of What to Believe Now: Applying Epistemology to Contemporary Issues (2012, Wiley-Blackwell), the co-author of The Climate Change Debate: An Epistemic and Ethical Enquiry (2013, Palgrave), and the editor of Conspiracy Theories: The Philosophical Debate (2006, Ashgate). Liese Coulter is an Associate Lecturer in Science Technology and Society at Griffith University. While completing a MSc Communication at The Australian National University (ANU), she focused on global environmental change and authored a report on voluntary carbon offsets for the Global Carbon Project. She has worked as communication manager for research organizations that support adaptation to climate change, both at the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and at the National Climate Change Adaptation Research Facility (NCCARF) and consulted with government departments and universities. Liese has volunteered with the Australian Red Cross in Queensland evacuation centres since 2010 and sees climate change adaptation as a current practice. Felicity Deane completed a Bachelor of Law and a Bachelor of Commerce at the University of Queensland in 1999. Immediately following graduation Felicity commenced work and study in the United States in the disciplines of accounting and law. She returned to Australia to complete a Post Graduate Diploma at Monash University. Before returning to studies Felicity worked as a Senior Policy Officer with the Queensland Police Service. She commenced PhD studies in December 2009 at Queensland University of Technology. Her PhD entitled, ‘The Clean Energy Package and WTO Law: An Analysis of Compliance Issues’ was subsequently completed in August 2013. In January 2014 Felicity commenced her time as a lecturer within the law school on the early career academic programme. She has published a number of articles on the topic of emissions trading, market based mechanisms and the World Trade Organization (WTO) Law. Her book Emissions Trading and WTO Law: A Global Analysis was published by Edward Elgar in March 2015. David M. Douglas is a postdoctoral researcher with the Department of Philosophy and the ethics advisor for the Centre for Telematics and Information Technology (CTIT) at the University of Twente. He is also a participant in the EU SATORI (Stakeholders Acting Together On the ethical impact assessment of Research and Innovation) project. He received a PhD in philosophy from the University of Queensland in 2011. His research interests include intellectual property, computer ethics, Internet regulation, science and technology studies and applied ethics. His work has been published in the journals Ethics and Information Technology and Science and Engineering Ethics.

List of Contributors

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Yugank Goyal is Associate Professor at OP. Jindal Global University in India, having taught at the law school and the school of liberal arts and humanities. He is also pursuing his PhD at University of Hamburg in Germany (along with Erasmus University Rotterdam and University of Bologna). He is a trained engineer from India and has an LLM in law and economics from University of Manchester, UK. Previously, he was a Consultant with a joint venture of a private bank with an Indian government agency, offering advice on industrial infrastructure projects in rural parts of India. He works on institutions, informal markets, intellectual property, governance and regulation. Bridget Lewis is a Lecturer in the Faculty of Law at the Queensland University of Technology where she teaches international law at undergraduate and postgraduate levels. Bridget’s research interests relate to international human rights law, particularly the relationship between the environmental human rights. She has published on various related topics including environmental and climate justice, natural disasters and displacement and constitutional environmental rights. She is a member of QUT’s International Law and Global Governance Research Program. Bridget received her PhD from Monash University on the topic of ‘The Human Right to a Good Environment in International Law and the Implications of Climate Change’. Rowena Maguire is a Senior Lecturer in the School of Law at the Queensland University of Technology (and co-chair of the International Law and Global Governance Research Program at QUT). Rowena’s principal research interests and publications concern international climate and forest regulation with a focus on equitable design and implementation. Her PhD research focused on the international regulation of sustainable forest management and this work was published as a monograph Global Forest Governance: Legal Concepts and Policy Trends (Edward Elgar, 2013). Currently, Rowena is working on an Australian Research Council funded project exploring the global climate regime and integrity issues. Jonathan Pickering is a Postdoctoral Fellow at the University of Canberra, based at the Centre for Deliberative Democracy and Global Governance. In 2014, he received his doctorate in philosophy from The Australian National University (ANU), having studied in the Centre for Moral, Social and Political Theory. His thesis explored opportunities for reaching a fair agreement between developing and developed countries in global climate change negotiations. Before joining the University of Canberra, he taught climate and environmental policy at ANU. Jonathan’s research interests include the ethical and political dimensions of global climate change policy, global environmental governance, development policy and ethics, and global justice. His published research includes articles in Ethics and International Affairs, Critical Review of International Social and Political Philosophy and World Development. He has a Masters’ degree in development studies from the London School of Economics and Political Science (LSE), and undergraduate degrees in arts and law from the University of Sydney. Previously, from 2003 to 2009, he worked as a policy and programme manager with the Australian Government’s international development assistance programme. Vesselin Popovski is Full Professor and Vice Dean of the Law School, Executive Director of the Centre for UN Studies, Jindal Global University, India. Until 2014 he was Senior Academic Officer at the Institute for Sustainability and Peace, United Nations University, Tokyo. He has published numerous articles in peer-reviewed journals. Vesselin has authored and edited over 20 books, most recently International Rule of Law and Professional Ethics (Ashgate, 2014), The Security Council as Global Legislator (Routledge, 2014), Access to International Justice

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(Routledge, 2014), ASEAN: National Identity from Transnational Dimensions (Interbooks, 2014). He has previously co-edited: International Criminal Accountability and the Rights of Children (2006, UNU Press); World Religions and Norms of War (2009, UNU Press); Democracy in the South (2010, UNU Press); Human Rights Regimes in the Americas (2010, UNU Press); Blood and Borders: Responsibility to Protect and the Kin State (2011, UNU Press); Legality and Legitimacy in Global Affairs (2012, UNU Press); After Oppression: Transitional Justice in Latin America and Eastern Europe (2012, UNU Press); Norms of Protection: R2P, POC and their Interaction (2012, UNU Press). His collaborative research with the East-West Center, Honolulu resulted in three books – Building Trust in Government (2010), Engaging Civil Society (2010) and Cross-Border Governance in Asia (2011) – part of the UNU Press series ‘Trends and Innovations in Governance’. He has taken part in major international projects: the International Commission on Intervention and State Sovereignty (ICISS) and its 2001 Report ‘Responsibility to Protect’; the Princeton Project on Universal Jurisdiction, issuing ‘Princeton Principles of Universal Jurisdiction’ (2001). Vesselin previously worked as a Bulgarian diplomat, NATO research fellow, lecturer at the University of Exeter UK and senior expert for the EU TACIS project ‘Legal Protection of Individual Rights in Russia’. Matthew Rimmer was appointed a Professor of Intellectual Property and Innovation Law at the Queensland University of Technology Faculty of Law in July Semester 2015. He was an Australian Research Council Future Fellow (2011–2015). Matthew was an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA) (2001–2015). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is the author of Digital Copyright and the Consumer Revolution: Hands Off My iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, Intellectual Property and Emerging Technologies: The New Biology, and Indigenous Intellectual: A Handbook of Contemporary Research. Matthew has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, the plain packaging of tobacco products, clean technologies and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works. He received the ANU Vice-Chancellor’s Award for Public Policy and Outreach at the annual Awards Ceremony on the 26 November 2013. He was one of Managing IP’s 50 most influential intellectual property people in 2014. Charles Sampford is a highly respected and globally recognized governance expert with extensive experience in advising parliamentary committees, applied research, teaching, course development and programme delivery. He has been consulted by business, government and various Parliaments – including Queensland’s PEARC and the Members Ethics and Privileges committee, numerous Federal ‘portfolio’ committees and the Lord Chancellor’s Committee on Legal Education. He was the first person consulted by the Nolan Committee on Standards in Public Life (UK) and was the principal legal advisor to the Queensland Scrutiny of Legislation Committee from its inception in 1995 to 2002. In 2002–2003, he was a member of a task force on responding to threats to democracy co-chaired by Madeleine Albright and in 2003–2004, he led a Soros-funded series of dialogues on governance values involving western and Islamic scholars. In 2009, he was a member of the Queensland Premier’s integrity roundtable and chaired most of the community consultations around the state. He has led and taken part in several capacity building and governance projects

List of Contributors

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for agencies such as AusAID, World Bank, APEC, OECD and Soros Foundation which involved participants from countries such as Indonesia, Philippines, Vietnam, East Timor, Georgia and Mongolia. His experience in curriculum and course design includes the curriculum for the Griffith Law School which was hailed by Sir Ninian Stephen as a ‘revolution in legal education’ that took Griffith to #43 in world rankings after 20 years but also includes numerous tailored short courses for visiting groups interested in governance reform. As a researcher, he has published more than 130 essays/articles and 30 books and was acknowledged by the Australian Research Council as one of the 20 academics they have funded who had achieved the greatest impact (Graeme Clark Awards, Parliament House, Canberra, 2008). He has led a total of 22 major ARC grants as well as numerous capacity building projects. Anne Schwenkenbecher is a Lecturer in Philosophy in the School of Arts at Murdoch University. Before joining Murdoch in June 2013, she held appointments at The University of Melbourne, the Centre for Applied Philosophy and Public Ethics (CAPPE) at Australian National University, and the University of Vienna. Her PhD in Philosophy (2009) is from Humboldt University of Berlin. Anne’s research focuses on a range of topics in nonnative and applied ethics, as well as political philosophy and action theory. These include the possibility and nonnative significance of collective agency, the ethics of political violence and ethical problems arising from climate change. Her book Terrorism: A Philosophical Enquiry was published by Palgrave Macmillan in 2012. Andrea C. Simonelli, PhD, is the founder of Adaptation Strategies International (ASI) a research and consulting firm. Andrea received her doctorate in 2012 from Louisiana State University; she specializes in governance responses to human migration, specifically the intergovernmental institutional responses to those being displaced by climate change. She is also a graduate of the United Nations University Environment and Human Security (UNU-EHS) summer Academy (2010) and Oxford Refugee Centre’s Summer School in Forced Migration (2009). Her work includes the book Governing Climate Induced Migration and Displacement: IGO Expansion and Global Policy Implications (Palgrave Macmillan, 2015) and various articles/book chapters based on her fieldwork in the Maldives, climate justice, and the UNFCCC’s Warsaw International Mechanism (WIM).

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Acknowledgements This research was conducted under an Australian Research Council (ARC) Discovery Project 2014–2017 grant. Chief Investigators of this project are Charles Sampford, Vesselin Popovski, Hugh Breakey, Tim Cadman and Rowena Maguire. The views expressed herein are those of the authors and are not necessarily those of the Australian Research Council.

While I believe that cooperative international action on climate change is unlikely to happen until after islands disappear or massive property loss occurs in the wake of a climate change-induced storm, a book like this is important for advancing public consciousness about climate change ethics and governance. This book talks cogently about decentralized and unsystematic collective problem solving and explores climate ethics and the moral problems raised by climate change. The book shows how human rights took decades to become universal, and climate ethics may be at the beginning of a similar trajectory. Armin Rosencranz, Jindal Global University, India, and co-editor of Climate Change Science and Policy International debate and action addressing the impacts of climate change are bedevilled by a vacuum at the interface between the normative and empirical, between values and the practical. Ethical Values and the Integrity of the Climate Change Regime addresses this gap comprehensively. This timely collection of cross disciplinary expertise commendably combines ethical analysis with resources essential to public policy and public debate. Noel Preston, Griffith University, Australia This excellent book goes a long way toward closing the gap between ethics and real-world climate change governance. Across a wide range of topics – including national governance, international trade, personal values, and international climate change negotiations – it provides insightful suggestions on how to employ ethical norms to effectively address climate change. This book will be useful to both scholars and policy makers. John C. Dernbach, Widener University, Commonwealth Law School, USA This timely collection addresses how ethical values should work in shaping the global carbon integrity system. Written by an internationally renowned panel of experts, it is a must read for anyone interested in the ethical values underlying the policies and practices of the global climate change regime. Fabrice Renaud, United Nations University, Germany

List of Abbreviations °C

degrees centigrade

AC ACC ADP ANU AOSIS APEC AR4 AR5 ARC AusAID

air conditioning anthropogenic climate change Ad Hoc Working Group on the Durban Platform for Enhanced Action The Australian National University Alliance of Small Island States Asia-Pacific Economic Cooperation Fourth Assessment Report Fifth Assessment Report Australian Research Council Australian Agency for International Development (now Australian Aid and delivered through Department of Foreign Affairs and Trade)

BASIC BINGOs BRIC

Brazil, South Africa, India and China business and industry organizations Brazil, Russia, India and China

CAN CAT CBD CBDR CCS CDM CDM-EB CDP CEDAW CERD CER CFC CIFOR CIFs CJN CMP CO2 COMEST COP CRC CRPD

Climate Action Network carbon added tax Convention on Biological Diversity Common But Differentiated Responsibilities and Respective Capabilities Climate Change Secretariat Clean Development Mechanism Clean Development Mechanism Executive Board Committee for Development Policy Convention on the Elimination of All Forms of Discrimination against Women Convention on the Elimination of All Forms of Racial Discrimination Certified Emission Reduction chlorofluorocarbon Centre for International Forestry Research Climate Investment Funds Climate Justice Now! Meeting of the Parties Report carbon dioxide World Commission on the Ethics of Scientific Knowledge and Technology Conference of the Parties Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities

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CSIRO CTCN

Commonwealth Scientific and Industrial Research Organisation Climate Technology Centre and Network 

DESA DNA DOE DPAD DRR DSU

Department of Economic and Social Affairs Designated National Authority Designated Operational Entities Development Policy Analysis Division disaster risk reduction Understanding on Rules and Procedures Governing the Settlement of Disputes

EB EIG EIT ENGOs ERU EU EVI

Executive Board Environmental Integrity Group economy in transition (the Russian Federation, the Baltic States, and several of the Eastern and Central European States) Environmental and Non-Governmental Organizations emission reduction units European Union economic vulnerability index

FCPF FENCO FPIC

Forest Carbon Partnership Facility Fossil Energy Coalition free prior and informed consent

G20

GATT GCF GCP GDP GEF GHG ghg GNI GST

The members of the G-20 are the finance ministers and central bank governors of 19 countries: Argentina, Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, Saudi Arabia, South Africa, South Korea, Turkey, the UK and the US, as well as the European Union, represented by the rotating council presidency and the European Central Bank. Group of 77 – brings together 134 developing countries to discuss the most relevant issues concerning the development agenda at the United Nations and its specialized agencies. General Agreement on Tariffs and Trade Green Climate Fund Global Carbon Project Gross Domestic Product Global Environment Facility greenhouse gas gross national income good and services tax

HAI HVAC

Human Assets Index heating, ventilating, and air conditioning

ICCPR ICESCR ICRC

International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Red Cross and Red Crescent

G77

List of Abbreviations

ICRMW IDDRI IEA IFRC IGO IISD IMF INDC IPCC ITO

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Institute for Sustainable Development and International Relations International Energy Agency International Federation of Red Cross and Red Crescent intergovernmental organizations International Institute for Sustainable Development International Monetary Fund intended nationally determined contributions Intergovernmental Panel on Climate Change International Trade Organization

JCM JI JISC

Joint Crediting Mechanism Joint Implementation Joint Implementation Supervisory Committee

LDC LDM LIBOR LSE LULUCF

Least Developed Countries Loss and damage mechanism (Intercontinental Exchange) London Interbank Offered Rate. It is based on five currencies: US dollar (USD), Euro (EUR), pound sterling (GBP), Japanese yen (JPY) and Swiss franc (CHF) London School of Economics and Political Science land-use, land-use change and forestry negotiations

MCII MRV

Munich Climate Insurance Initiative Monitoring, reporting and verification

NAMA NAPCC NDRRA NEP NGGI NGO NINJA

Nationally Appropriate Mitigation Action National Action Plan on Climate Change Australia’s Natural Disaster Relief and Recovery Arrangements New Environmental Paradigm National Greenhouse Gas Inventory  non-government organization no income, no job, and no assets (low quality, sub-prime loans)

OECD OHCHR

Organisation for Economic Cooperation and Development Office of the United Nations High Commissioner for Human Rights

PBL PEARC PIJ ppm

Planbureau voor de Leefomgeving (The Netherlands Environmental Assessment Agency) Parliamentary Committee for Electoral and Administrative Review Public Institutional Justification parts per million

QELRO

quantified emission limitation and reduction objectives

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R2P REDD RGGI RINGOs

responsibility to protect Reducing Emissions from Deforestation and Forest Degradation Regional Greenhouse Gas Initiative research and academic organizations

SBI SBSTA SD-PAMS SIDs

Subsidiary Body for Implementation Scientific Body for Scientific and Technical Advice Sustainable Development Policies and Measures Small Island Developing States

TEC TFB

Technology Executive Committee Task Force Bureau

UDHR UG UK UN UNCLOS UNDP UNDRIP UNEP UNESCO UNFCCC UNHRC UNPRI UNTS UNU-EHS USA/US USD

Universal Declaration of Human Rights Umbrella Group – informal collection of developed countries outside the EU comprises countries including Australia, Canada, Japan, New Zealand, Kazakhstan, Norway, the Russian Federation, Ukraine and the US United Kingdom United Nations United Nations Convention on the Law of the Seas United Nations Development Programme United Nations Declaration on the Rights of Indigenous Peoples United Nations Environment Program United Nations Educational, Scientific and Cultural Organization United Nations Framework Convention on Climate Change United Nations Human Rights Council United Nations-supported Principles for Responsible Investment United Nations Treaty Series United Nations University – Environment and Human Security United States of America United States dollar

VAT VCS

value added tax voluntary carbon standards

WIM WMO WTO

Warsaw International Mechanism World Meteorological Organization World Trade Organization

YOUNGOs youth, women and gender organizations

Introductory Framework

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Chapter 1

Ethical Values and the Global Carbon Integrity System Rowena Maguire, David M. Douglas, Vesselin Popovski and Hugh Breakey

There are many excellent books on climate justice and ethics, and their theorizing is a crucial and natural step in moving towards a justified response to this urgent problem. However, the purpose of this book lies elsewhere; it explores how ethical values can and should work in driving and structuring the global carbon integrity system. An integrity system is an interwoven network of formal and informal norms, institutions and practices that serve to advance integrity and to eliminate corruption. The integrity systems operate both at the national and at the international level. At the national level the integrity systems are grounded in well-established constitutional principles like the rule of law and separation of powers, ensuring that all citizens are equal, and nobody – even a King or an Emperor – is above the law. They enjoy solid domestic constitutional law enforcement – citizens pay taxes, respect the laws and support a transparent and accountable government. The integrity system at national level is a bond between citizens and states who respect each other; but in case of abuse, safety valves come to play – if citizens evade taxes, threaten the public order or misbehave in another way, the state uses its monopoly on the use of force and sanctions such citizens. If a government is corrupted, threatens the public order or misbehaves in another way, the citizens can voice dissatisfaction, march in protests and ultimately vote for a different party, hoping that it will bring a better government. At the international level the integrity systems are more complex, because of a myriad of state and non-state actors, private and public institutions, formal or informal, temporary or permanent, weaved in a net of international agreements (treaties and customs) and operating within global or regional, governmental or non-governmental organizations. The global carbon integrity system takes as its central edifice the United Nations Framework Convention on Climate Change (UNFCCC) and includes not only all the myriad organizations and sub-institutions working under the Convention’s aegis – but also non-government organizations, economic treaties, market-driven standards bodies and much more, creating a tangled web of accountability and activity. This edited book brings together the papers presented at the first workshop of the research project: ‘Towards Global Carbon Integrity: Applying Integrity System Methodology to the Global Carbon Crisis’.1 The aim of this project is, in three phases, to apply the theory and best practices of national integrity systems to the global carbon integrity system. Phase one of the research and the focus of this collection is to explore the ethical values underlying the policies and practices of the global climate change regime. Integrity focuses on positive attributes or behaviours, as opposed to corruption studies, which focus on negative behaviours. This collection therefore seeks to unpack and explore the positive values driving the global climate change processes, to offer an understanding of the motivations justifying the creation of the regime and the way that social norms impact upon the operation of the integrity system. 1 The workshop was held in Brisbane on the 27–28 November 2014. The research was conducted under the Australian Research Council (ARC) Discovery Project 2014–2017. Chief Investigators of this project are Charles Sampford, Vesselin Popovski, Hugh Breakey, Tim Cadman and Rowena Maguire.

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Ethical Values and the Integrity of the Climate Change Regime

Taking this approach opens up intriguing new questions about how ethical values work in recognizing and responding to large-scale problems. When one studies moral theory and applied ethics from the standpoint of the traditional sovereign state, with its authority over the law and its monopoly on coercive force, the questions are different and, often, simpler. In this orthodox case, it is easy to imagine an authoritative state arriving at singularly correct answers to ethical questions, and then legitimately commanding and requiring citizens’ allegiance to the laws and policies implementing those answers. On this footing, our moral questioning hones in on overarching concerns with the right thing to do, with the assumption that the established rule of law system can take care of the details of implementation, accountability and enforcement. Moving from studying government to governance – from national integrity systems to global integrity systems – the moral questions become more subtle. The social topography into which we seek to inject moral reasoning is no longer state-centric and presumptively legitimate, characterized by a top-down decision-making authority. Instead, authority and power disperse unevenly throughout the system. This milieu is not a Hobbesian world devoid of moral intention and action – but it is a messier and more contested landscape than we have been used to dealing with. In this realm of international governance, effective action happens through coordination and competition, legal authority rests on perceived legitimacy and normative acceptability, national positions shift through persuasion and international pressures, and accountability relies on publicity (competitiveness?) as much as official watchdog institutions. With the internationalization of authority and power, the locus of ethical concern transforms. Over-arching moral theories of comprehensive justice turn out to be problematic in crafting solutions. Less ambitious and more targeted ‘functional’ or ‘mid-level’ norms become instrumental. Negotiated compromises and lowest common denominators (hiding principled disagreements) become the order of the day. Norms that structure the relationships between actors become vital for implementation and accountability efforts. We begin to theorize about how to solve specific problems while drawing on existing legal and moral resources from another sector – or alternatively at least without disrupting the gains achieved by that sector. We try to solve discrete, specific problems in an environment that is anything but discrete and specified – to the contrary, that is networked and conflicted. We move into the terrain of ethical theory for a dynamic, bottom-up-as-much-as-top-down, contested-as-much-as-consensual world. The following chapters deal with a host of vexing issues arising from this shift in perspective, and we hope they will provide insights not only into solving the urgent problem that forms their focal topic – climate change – but also in informing how ethics and governance might helpfully respond to other applied topics that are similarly situated in global integrity systems. A Walk through the Book Climate change has been described as a wicked or diabolical phenomenon, which as such produced a global carbon crisis.2 The integrity systems framework in this book explores how the concept of integrity relates to the global carbon regime. The various chapters analyse how the ethical principles are grounded in the global climate change regime and to what extent the climate change actors, for example the UNFCCC, possess integrity and whether or not these actors act with integrity. The remainder of this introduction, and the following conceptual chapter, provide the reader with the resources for navigating the challenging terrain presented by ethics in global integrity 2 Ross Garnaut, The Garnaut Climate Change Review: Final Report (Melbourne: Cambridge University Press, 2008).

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systems. This chapter turns to explaining the key climate ethical norms and principles that will be employed in different contexts and applications throughout the rest of the book. Understanding how ethical values might play a role in the global carbon integrity system requires having a solid grasp of the major principles at work in informing the goals, methods and inner workings of that system. This is a helpful primer for the reader unfamiliar with the current moral and legal thinking on climate change action. The second chapter of the book introduces what we call the ‘Comprehensive Integrity Framework’, a terminological system for speaking about different concepts of institutional integrity and how they relate to one another. In that chapter, we show how this Framework applies to the global carbon integrity system. As we move forward through the book, the Framework provides a common understanding and touchstone for the book’s chapters. Of course, this does not mean the Framework is itself above critique – different authors will foreground different parts of it, and some (such as Schwenkenbecher) will take direct issue with its applicability to the direction of current climate mitigation efforts. The first substantive section, ‘Injecting Ethics into Governance Arrangements’, explores a range of issues concerning how ethical values apply to the global carbon integrity system. As discussed above, ethics for integrity systems is not simply a matter of applying singular overarching theories of justice, but rather of seeing moral values as a factor guiding, but also working and surviving within a complex ecosystem. Rowena Maguire’s chapter explores the system’s integrity by focusing on the principle of ‘common but differentiated obligations’ (CBDR). She begins by locating the public institutional justification (PIJ) of the climate regime in the core provisions of the UNFCCC. Attention then turns to how the regime can construct and employ values that promote this end. On this footing, principles like CBDR can be appraised as ‘functional norms’ designed to respond to a particular problem in a morally respectable way. Tim Cadman’s chapter takes a more empirical turn, teasing out the over-arching structure of the regime and surveying some of the key values-based perceptions of major players within the regime. Drawing on and filling out the Comprehensive Integrity Framework, Cadman analyses the perceptions of key practitioners and observers on the integrity of the regime and its major subinstitutional components. While the presence of values within the regime’s members and constitutional documents are important, a key question confronting any integrity system concerns how those values manage to play a role in concrete institutional processes. How can a regime’s internal organizational arrangements ensure that principles and norms, as much as narrow self-interest, manifest in the regime’s decision-making and implementation? Donald Brown’s chapter broaches this hard question – and looks to institutional processes developed by human rights practices as a way of ensuring that minimum ethical reasoning injects into the functioning of the global climate regime. Integrity systems function within a larger context of institutions and regimes – each with their own agendas. The global climate regime proves no exception, situating itself in an international complex with powerful and established practices already in place. Felicity Deane’s chapter investigates one key institution in this respect: the World Trade Organization, teasing out how its core tenets relate to – and in some respects accord with – the core objectives of the global climate regime. Part II, ‘Ethics in a Dynamic and Decentralized World’, continues the study of how ethical values apply to integrity systems by honing in on some of the most vexing features of the global carbon regime: its basis in a stable system of decentralized state consent. Each element of this core structure raises challenges in developing and applying ethical values.

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Ethical Values and the Integrity of the Climate Change Regime

Jonathan Pickering reflects on the use of large-scale ‘top-down’ theories of climate justice in the context of the current shift away from centrally determined emissions allocations towards a system where each country is able to frame their own commitments. Addressing a question that cuts to the heart of ethical theorizing about complex integrity systems, rather than in application to authoritative nation-states, Pickering explores the subtle but important role over-arching theories of justice can play in a complex and ‘bottom-up’ integrity system. Liese Coulter takes up a different challenge: the dynamism of the current global environment. Too easily, theorists and practitioners can fall into the trap of speaking and planning as if economic, political and geo-physical factors will remain mostly constant – or at least will shift in linear and predictable ways. The reality of climate change contests such comfortable assumptions, and Coulter develops proposals to craft a climate integrity system capable of functioning effectively and legitimately in a world where climate vulnerability, and the ensuing ramifications for economies and political regimes, might shift dramatically. The following two chapters, in different ways, draw attention to the limitations of the international state-centric environment. Yugank Goyal shows how our ethical theorizing, no less than our political decision-making, tends to be refracted through the lens of sovereign states. However, it is individual people, not states, that are the proper objects of moral concern and obligation, and the ‘averaging-out’ required to translate these individualist values onto our statist world creates unjust outcomes that make effective action impossible. Anne Schwenkenbecher similarly takes aim at the state-consent-based internal organizational arrangements that form the spine of the current global integrity system. Borrowing from Elinor Ostrom’s research on the decentralized efforts of cities, non-government organizations (NGOs), corporations and other groups to respond to climate change, Schwenkenbecher broaches the question of the helpfulness of looking at the issue from an ‘integrity systems’ approach – with its requirement of a central dedicated institution responsible for solving the problem. With this in mind, Schwenkenbecher reflects on the need for a way of analysing, and thereby promoting, truly decentralized and unsystematic collective problem-solving endeavours. Part III, ‘Social Norms in the Global Context’, moves to the normative landscape – the lifestyles, beliefs and mores of the international community – in which the climate regime seeks to do its work. Any integrity system must both draw upon and wrestle with the prevailing norms in the society in which it seeks to operate and succeed. Those widespread social norms can nurture the integrity system’s pursuit of its public institutional goal – or can prove toxic to it. Vesselin Popovski interrogates whether the ethical values developed for an earlier world will prove equally helpful in the ‘Anthropocene’, an age where the human imprint has raised to geological proportions. Can the global carbon regime be expected to succeed in its goals if it must function within a world where capitalist growth remains the driving individual and national ethos? Instead, Popovski argues, a transformation in values can create the soft-law context in which sustainable solutions become possible. Like Popovski, Charles Sampford looks to a change in ethos, arguing that there can be no solution to climate change until we have sustainable conceptions of the good life that those in the global north want to live, and others might want to live. As Sampford relates, the problem is not simply one of moral norms, but of desirable lifestyles – and the global community is yet to develop these, or to come to terms with how the levers of politics and economics can be employed to tilt human aspirations in ecologically responsible directions. Yet it is not only moral norms, and personal lifestyles, that impact upon the carbon regime’s capacity to fulfil its goals. Epistemic norms – that is, the principles that people use to construct their beliefs – prove at least as important. David Coady’s chapter confronts two widespread errors rife

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in debates about the science of climate change, infecting scientists and laypeople alike – errors that unintentionally lay the groundwork for a mistaken prioritization of scepticism in climate science. The book’s final part, ‘Marshalling Human Rights to the Cause’, takes into consideration arguably the most successful international normative project of all time – the human rights movement, and explores how human rights laws, mechanisms and insights can prove a fertile resource for bolstering the climate integrity system. Bridget Lewis begins the section by considering how human rights principles can improve the effectiveness and integrity of the climate regime. There are perhaps obvious ways this is so, for example by using human rights to discern the moral issues in play in climate action and inaction, and by leveraging human rights obligations to motivate carbon emissions efforts. But Lewis highlights other less obvious insights human rights practice has to offer, including the ways that equity, fairness and transparency commitments can improve institutional integrity, and how human rights principles provide established decision-making processes for balancing competing interests and crafting proportional responses to ethical necessities. Matthew Rimmer looks at a specific case study of human rights norms being introduced into the climate regime through the work of one particular actor, Mary Robinson, the former Irish President and United Nations High Commissioner for Human Rights. Robinson’s influential work linked human rights with climate change morally and institutionally, of which the 2013 Declaration of Climate Justice stands as a key example. Taking a different tack, Andrea Simonelli surveys the significance of human rights to one particular element of the current climate regime, the ‘Loss and Damage Mechanism’. Providing another example of how integrity systems can benefit by incorporating established norms, Simonelli highlights how employing human rights norms allows us to fill out and recognize the moral significance of the Mechanism’s key ‘non-economic loss’ elements. It is possible to ask an array of questions about human rights and the global climate integrity system: one can incorporate norms into the decision-making and legal judgments within the regime (Lewis, Rimmer, Simonelli), or employ institutional features of human rights practice into the regime (Lewis, and earlier Brown). Hugh Breakey looks to a further potentially fruitful avenue of study. Human rights, he argues, succeeded in becoming the international community’s ethical lingua franca because of their capacity to draw upon a wide array of ethical justifications. Their widespread endorsement lies in actors being willing to sign up to human rights on the basis of moral truth, personal consent, procedural legitimacy, pragmatic force, deliberative dialogue and more. If climate norms are to capture a similar level of support, they must appeal to the same breadth of avenues of legitimation. Climate Principles and Moral Values This section provides a brief overview of the issues of fairness that have influenced the global carbon regime. It describes the major principles of climate ethics, the philosophical examination of the moral problems raised by climate change, and the features of the global carbon regime that implement these principles. At the outset it is worth stressing that there is no clear positive vision of the regime. Rather, the PIJ of the regime is negative, focusing on avoiding dangerous anthropogenic change. One worrying implication of this lies in the lack of recognition and agreement on the positive values that the global carbon regime seeks to promote. For example, should the regime promote sustainable development, renewable lifestyles, equitable access and use of energy resources, green growth or

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Ethical Values and the Integrity of the Climate Change Regime

even an eco-centric ethic? The lack of positive vision within the global carbon regime challenges the ways that ethical values can work within the regime, and in the global community’s vision of the regime. Before describing the major principles for how the burdens of climate change should be distributed, we first describe two concepts that motivate action on climate change: the precautionary principle and intergenerational justice. The first principled motivator, the precautionary principle, is the claim that uncertainty about the possibility and extent of future harms should not justify inaction in attempting to prevent them. It reflects the intuition that actions that may cause a significant harm to others should be avoided, even if the amount of harm is uncertain.3 The precautionary principle appears in several United Nations documents on the environment, such as the UNFCCC (Article 3), the Agenda 21 document on sustainable development (chapter 35.3) and the Rio Declaration on Environment and Development (principle 15).4 The precautionary principle is conceived as a collection of related ideas rather than as a single principle.5 Sandin identifies a common structure within formulations of the precautionary principle that features the four dimensions of threat, scientific uncertainty, action, and command: ‘If there is (1) a threat, which is (2) uncertain, then (3) some kind of action (4) is mandatory’.6 Distinguishing between different aspects of the principle offers a response to claims that it is vague or ill-defined.7 However, the vagueness objection also notes that the precautionary principle does not specify how much caution is appropriate.8 Other objections include claims that it is incoherent as a decision-making rule,9 that following it would lead to adverse effects,10 that using the principle is ‘unscientific’ as it is a value judgment about the acceptable degree of risk11 or that it is an irrational rule for decision-making.12 The second principled motivator, the intergenerational justice, considers the relationship between people living now and those who will live in the future. The people alive today are the current and present generation, and future generations are our descendants. The questions are: 3 Donald A. Brown, Climate Change Ethics: Navigating the Perfect Moral Storm (London and New York: Routledge, 2013): 119. 4 United Nations, ‘Agenda 21: United Nations Environment Programme’ (UNEP, 1992); UNFCCC, ‘United Nations Framework Convention on Climate Change’ (1992); United Nations, ‘Report of The United Nations Conference on Environment and Development ((Rio De Janeiro)’ (A/CONF.151/26 (Vol. I): UNEP, 3–14 June 1992). 5 John Broome, Climate Matters: Ethics in a Warming World (New York: W.W. Norton & Company, 2012): 117. 6 ‘Dimensions of the Precautionary Principle’, Human and Ecological Risk Assessment: An International Journal 5, no. 5 (1999): 891 (emphasis and number in original). 7 Per Sandin et al., ‘Five Charges against the Precautionary Principle’, Journal of Risk Research 5, no. 4 (2002): 290. 8 Daniel Bodansky, ‘Scientific Uncertainty and the Precautionary Principle’, Environment: Science and Policy for Sustainable Development 33, no. 7 (1991): 8. 9 Martin Peterson, ‘The Precautionary Principle Is Incoherent’, Risk Analysis 26, no. 3 (2006). 10 John Harris and Søren Holm, ‘Extending Human Lifespan and the Precautionary Paradox’, Journal of Medicine and Philosophy 27, no. 3 (2002). 11 Sandin et al., ‘Five Charges against the Precautionary Principle’, 294; Marko Ahteensuu and Per Sandin, ‘The Precautionary Principle’, in Handbook of Risk Theory, ed. Sabine Roeser, et al. (Netherlands: Springer, 2012): 792–93. 12 David B. Resnik, ‘Is the Precautionary Principle Unscientific?’, Studies in History and Philosophy of Science Part C: Studies in History and Philosophy of Biological and Biomedical Sciences 34, no. 2 (2003).

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What rights can future generations claim over the current generation? And what duties do those alive now hold towards successive generations? The relationship between people living today and those who will live in the future is asymmetrical and non-reciprocal: the actions of future generations will not affect the current generation’s well-being, while the current generation’s actions significantly impact the circumstances of future generations.13 A crucial aspect of intergenerational justice is deciding whether future people have equal moral status to present people. This considers whether the interests of future generations are of equal importance to those of the current generation, and if not, what could be the appropriate weighting for the interests of the future generations against the current generation. This would determine the burden to impose on people living today so that people living in the future are not jeopardized by the decision-making of today. The response to this problem depends on the position adopted on time preference or temporal partiality: whether goods or well-being are worth the same or more now than they are worth in the future. Pure time preference discounts future goods and wellbeing so that they are worth less than current goods and well-being.14 The discount rate is the rate by which future goods and well-being are reduced compared to their current counterparts. For example, a discount rate of 5 per cent per year means that a good produced in a year’s time is worth 5 per cent less than the same good produced today.15 There is also a ‘family element’ in applying inter-generational justice, because most of us have children and grand-children, it is inconceivable to think egoistically, in the manner in which the French King Louis XV once said ‘Apres moi, le deluge’.16 Babies born today will still be alive in the first years of the twenty-second century and would very much be affected by our negligence to the negative consequences of the climate change or the exhaustion of natural resources. The inter-generational justice is confronted with two claims that can justify discounting:17 diminishing marginal benefits and prioritarianism. Diminishing marginal benefits claims that people in the future generally will be wealthier than people today, and so any improvements to their well-being will be less important than improving the well-being of people today.18 This can also be defended by the concept of growth discounting, which claims that since the future will be wealthier than the present, the richer future generations should carry a greater burden than the poorer current generation.19 Prioritarianism is the claim that it is more important to improve the well-being of the less fortunate than it is to improve the well-being of the well-off.20 Accordingly the people of the future are expected to be well-off and this justifies discounting. Rawls’ difference principle (inequalities are permissible only if they are beneficial to the worst-off in society) is another example of prioritarianism.21

13 Lukas Meyer, ‘Intergenerational Justice’, in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta (Winter 2014 Edition), http://plato.stanford.edu/archives/win2014/entries/justice-intergenerational/ (accessed 11 May 2015). 14 Broome, Climate Matters: Ethics in a Warming World, 149. 15 Ibid., 105. 16 After me, (let) a disaster (happen). 17 Broome, Climate Matters: Ethics in a Warming World, 144–48. 18 Ibid., 144. 19 Simon Caney, ‘Climate Change, Intergenerational Equity and the Social Discount Rate’, Politics, Philosophy and Economics 13, no. 4 (2014): 327–28. 20 Broome, Climate Matters: Ethics in a Warming World, 115. 21 John Rawls, A Theory of Justice, 1 ed. (Harvard University Press: Harvard University Press, 1971).

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Ethical Values and the Integrity of the Climate Change Regime

Distributing Carbon Emission Allowances The global carbon regime aims to mitigate climate change by placing controls on carbon emissions and will necessarily impose burdens on some parts of the global population. A number of distributive principles that reflect different moral intuitions have been proposed to determine a fair distribution of these burdens: • Grandfathering: Existing distributions and practices should be recognized under new arrangements.22 • Equal per capita emissions: Everyone has an equal claim to the atmosphere.23 • Polluter pays: Polluters have a responsibility to repair the damage they cause.24 • Beneficiary pays: Those who gain an advantage by disadvantaging others have a duty to rectify that disadvantage.25 • Common but differentiated responsibility (CBDR)/Ability to pay: When there is a common duty, the better-off should contribute more than the worst-off.26 These principles differ in whether they consider historical circumstances relevant for distributing emissions limits. Principles that only consider current and future emissions are forward-looking, and those that take historical emissions into account are backward-looking. Forward-looking principles can be justified by the need to reduce the harm caused by excessive carbon emissions (that is, emissions that are beyond the necessities of life). Backward-looking principles, however, face a number of general objections. The first is that knowledge of the harms of carbon emissions is relatively new, and that it is unfair to penalize nations for harms they could not know of when these harms occurred.27 Another objection is that historical emissions are the work of previous generations, and that it is unfair to penalize the current generations for the harms caused by their forebears.28 A final point is that these principles only define an ‘ideal fair share’ of carbon emissions for each state. Further reductions in carbon emissions that go beyond the reductions required to meet this ideal fair share may be morally justified given the harms of climate change and the risk of other states failing to restrict their own emissions to the necessary level.29 22 Luc Bovens, ‘A Lockean Defense of Grandfathering Emission Rights’, in The Ethics of Global Climate Change, ed. Denis G. Arnold (Cambridge: Cambridge University Press, 2011); Carl Knight, ‘What Is Grandfathering’, Environmental Politic 22, no. 3 (2012). 23 Paul Baer, ‘Equity, Greenhouse Gas Emissions, and Global Common Resources’, in Climate Change Policy: A Survey, ed. Stephen H. Schneider, Armin Rosencranz, and John O. Niles (Washington, DC: Island Press, 2002); Peter Singer, One World: The Ethics of Globalisation (Melbourne: Text Publishing, 2002). 24 Myles R. Allen and Richard Lord, ‘The Blame Game: Who Will Pay for the Damaging Consequences of Climate Change?’, Nature 432 (2004). 25 Henry Shue, ‘Global Environment and International Inequality’, International Affairs 75, no. 3 (1999). 26 Simon Caney, ‘Climate Change and the Duties of the Advantaged’, Critical Review of International Social and Political Philosophy 13, no. 1 (2010). 27 Caney, ‘Justice and the Distribution of Greenhouse Gas Emissions’, Journal of Global Ethics 5, no. 2 (2009): 134; Stephen M. Gardiner, ‘Ethics and Global Climate Change’, Ethics 114, no. 3 (2004): 581; Shue, ‘Global Environment and International Inequality’, 535–36. 28 Caney, ‘Justice and the Distribution of Greenhouse Gas Emissions’, 134; Shue, ‘Global Environment and International Inequality’, 536–37. 29 Anne Schwenkenbecher, ‘A Plea for Taking Up the Slack’, Philosophy and Public Issues (New Series) 3, no. 2 (2013): 274–75.

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Grandfathering ‘Grandfathering’ claims that limits imposed on states should reflect their historical emissions, and that states should not pay to receive this allocation.30 Two pragmatic justifications can defend this principle: (1) grandfathering schemes can be modified over time to reduce emissions’ allocations and bring them to a more equitable level; and (2) gaining acceptance of the global carbon regime is a priority, and grandfathering is necessary to get major polluters to agree to limit carbon emissions.31 Grandfathering can also be defended on a utilitarian basis by using the marginal benefit argument that ‘one extra unit of emission entitlements from a baseline of zero increases welfare to a greater extent where it is assigned to a high emitter than where it is assigned to a low emitter’.32 The reliance of developed nations on carbon emissions means that they will benefit more from emissions than a developing nation where emissions do not play such a pivotal role. There are two powerful arguments against grandfathering as a method of allocating carbon emissions. The first is that reinforcing the current distribution of carbon emissions reinforces existing inequalities in wealth and resources.33 Secondly, grandfathering ignores historical responsibility for environmental damage, and since those states that have the largest carbon emissions continue to make significant emissions that grandfathering will protect, they continue to benefit from their damaging practices.34 Equal Per Capita Entitlements The basis of equal per capita entitlements is that everyone should be able to make the same claim to the atmosphere35 and therefore the amount of carbon emissions that the atmosphere can absorb is distributed equally between everyone. Each state receives accordingly a share of the permissible carbon emissions that corresponds to its population. States with smaller populations whose lifestyles cause significant emissions need to significantly reduce their emissions, while states with larger populations and less polluting lifestyles can increase their emissions.36 While allocating carbon emissions on an equal per capita basis has considerable intuitive appeal, it faces several significant objections. First, it gives an incentive for countries to increase their populations to gain greater emission allowances.37 Singer answers this objection by proposing that the allocation for each state should reflect the population (or projected population) at a particular date.38 Another objection is that this allocation does not distinguish between necessary subsistence emissions for an acceptable lifestyle, and excessive or luxury emissions.39

30 Caney, ‘Justice and the Distribution of Greenhouse Gas Emissions’, 127. 31 Ibid., 128–29. 32 Knight, ‘What Is Grandfathering’, 418. 33 Caney, ‘Justice and the Distribution of Greenhouse Gas Emissions’, 128. 34 Ibid. 35 Singer, One World: The Ethics of Globalisation, 39. 36 Ibid., 39–40. 37 Gardiner, ‘Ethics and Global Climate Change’, 548. 38 Singer, One World: The Ethics of Globalisation, 40–41. 39 Gardiner, ‘Ethics and Global Climate Change’, 584–85.

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Ethical Values and the Integrity of the Climate Change Regime

Polluter Pays Principle40 The polluter pays principle is the claim that those causing environment damage have a duty to compensate others for this harm. This principle builds on the economic concept of ‘internalization of externalities’: if the product’s price does not include the costs of addressing the pollution caused, others are forced to bear the costs of cleaning up pollution.41 Adding the costs of pollution to the price of the product ‘internalizes’ this externality so that the polluter pays this cost. A forward-looking version of the polluter pays principle – that it only requires polluters to pay for pollution they cause now instead of any past pollution – appears as principle 16 in the Rio Declaration. Polluters are liable for damage attributed to their carbon emissions.42 Shue argues that the forward-looking nature of the polluter pays principle makes it weaker than the backwardlooking alternatives, because only the future costs of pollution are considered and budgeted.43 Using responsibility for pollution as the basis for distributing burdens gives the polluter pays principle considerable intuitive appeal, although the principle is not without its difficulties. There is a problem of determining how much environmental damage can be attributed to any single polluter, although as Caney44 notes, this problem affects any principle that attributes responsibility for environmental damage to specific countries. Another concern is that following this principle may entrench further global inequalities. While wealthy countries can often produce significant carbon emissions, some developing economies are also heavy emitters. Imposing burdens on developing nations in proportion to their carbon emissions would impose significant costs that they cannot easily afford.45 Beneficiary Pays Principle The beneficiary pays principle considers the economic benefits that states can gain through carbon emissions, and accordingly distributes the burdens of addressing the environmental damage caused by such emissions.46 Page defines the beneficiary pays principle as follows: ‘a state benefits from activities within or beyond its borders that impose climatic disadvantage by surrendering benefits up to the point where the benefits that provide the basis of the remedial duty are exhausted’.47 This beneficiary pays is both forward and backward-looking as it considers past and current benefits

40 The term ‘polluter pays principle’ sometimes describes principles that are both forward and backwardlooking (Caney, 2005, 752–56). As the backward-looking aspects of the polluter pays principle overlap with the beneficiary pays principle, we will focus on forward-looking versions of the polluter pays principle. 41 Shue, ‘Global Environment and International Inequality’, 533. 42 Allen and Lord, ‘The Blame Game: Who Will Pay for the Damaging Consequences of Climate Change?’ 43 Shue, ‘Global Environment and International Inequality’, 534. 44 Caney, ‘Climate Change and the Duties of the Advantaged’, 206–208. 45 Ibid., 212–13. 46 Axel Gosseries, ‘Historical Emissions and Free-Riding’, Ethical Perspectives 11, no. 1 (2004): 36–37; Simon Caney, ‘Environmental Degradation, Reparations, and the Moral Significance of History’, Journal of Social Philosophy 37, no. 3 (2006): 471. 47 Edward Page, ‘Give it up for Climate Change: A Defence of the Beneficiary Pays Principle’, International Theory 4, no. 2 (2012): 306.

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from emissions in determining how burdens are distributed.48 The so-called ‘Brazilian proposal’ presented at the negotiations that led to the Kyoto Protocol is a form of this principle.49 The beneficiary pays principle differs from the polluter pays principle in that the polluter pays does not assume that polluters have benefited from the environmental damage they have caused. The beneficiary pays also does not have to show that particular states are responsible for pollution, only that they have benefited from doing so.50 As a backward-looking principle, the beneficiary pays principle faces the already mentioned objections of historical ignorance about the harm caused by carbon emissions and responsibility for the actions of earlier generations. An objection unique to this principle is that all countries have benefited from the wealth and development made possible by industrialization and the pollution it created.51 Common but Differentiated Responsibility and the Ability to Pay Principle Like the precautionary principle, the concept of CBDR appears in the guiding principles of the UNFCCC (Article 3) and in the Rio Declaration (Principle 7). It states that all countries have a duty to share the burdens of climate change (common responsibility), but how that duty is performed depends on each state’s circumstances (differentiated responsibility). The concept of differing responsibilities between equal members of international agreements has a history that can be traced back to at least the 1919 Treaty of Versailles.52 In the context of international environmental agreements, CBDR is seen as a compromise necessary to get all countries to accept agreements that otherwise would appear inequitable, especially to developing countries.53 A justification for CBDR is provided by the ability to pay principle, which Shue defines as: ‘Among a number of parties, all of whom are bound to contribute to some common endeavour, the parties who have the most resources normally should contribute the most to the endeavour’.54 The sources of wealth and the responsibility for pollution are irrelevant. This avoids the problems of attributing pollution to particular states and whether the current generation is responsible for pollution caused by previous generations. However, the ability to pay principle is forward-looking, making it vulnerable to the same objections raised against the forward-looking polluter pays principle. It also appears to overlook the importance of responsibility for pollution for determining how the burdens for addressing it should be distributed.55 Two major instruments have emerged within the global carbon regime to implement the above principles and to allocate emissions between states: • Carbon emissions trading. States are allocated a specified level, or ‘cap’, of carbon emissions, and if states do not reach their ‘caps’, they can sell these to other states that would otherwise exceed their levels. 48 Ibid., 307. 49 Gosseries, ‘Historical Emissions and Free-Riding’, 37. 50 Page, ‘Give it up for Climate Change: A Defence of the Beneficiary Pays Principle’, 306–307. 51 Shue, ‘Global Environment and International Inequality’, 534–35. 52 Rowena Maguire, ‘The Role of Common but Differentiated Responsibility in the 2020 Climate Regime: Evolving a New Understanding of Differential Commitments’, Carbon and Climate Law Review 7, no. 4 (2013): 261. 53 Ibid., 262. 54 Shue, ‘Global Environment and International Inequality’, 537. 55 Caney, ‘Climate Change and the Duties of the Advantaged’, 214.

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• Carbon offsets. Emissions by one state are ‘offset’ by actions in another state that removes a corresponding amount of carbon from the atmosphere or prevents that amount from being emitted. Carbon Emissions Trading Emissions trading (or ‘cap-and-trade’) schemes impose a limit on the permissible amount of carbon emissions, either internationally or within each state. This amount (or ‘cap’) is divided between the sectors of the state’s economy by giving them ‘permits’ to produce a certain amount of carbon emissions.56 A market for trading these permits is also established. Those who release more emissions than their permitted allowance must buy additional permits from others who have a larger allowance than what they need. The cost of buying permits is the ‘carbon price’.57 Emissions trading offers an incentive to reduce emissions so that polluters have to buy fewer permits, and releasing fewer emissions than permitted gives them surplus permits to sell to others. With effective enforcement and regulation, the emissions trading schemes can reduce pollution, minimize waste and maintain liberty.58 Such trading turns emissions into costs and emission reductions into cost savings, giving emitters clear incentives to find the easiest and cheapest methods to reduce the emissions. It also allows emitters to determine the best way to reduce their own emissions, rather than having methods of reducing emissions imposed on them by the state.59 Despite these benefits, there are a number of ethical concerns with emissions trading. Caney and Hepburn list five:60 1. Emissions trading institutionalizes property rights over portions of the natural world that should not be owned. 2. A collective sacrifice concern: Emissions trading alienates responsibilities that one should perform themselves.61 3. Unreliable trustees concern: Those who receive emissions permits may not use them in ways that are in the best interests of those they represent. 4. Emissions trading is unacceptable because it places a monetary value on the natural world, which should not be valued in this way. 5. Fee instead of fine argument: Emissions trading turns ‘fines’ for pollution into ‘fees’, wrongfully signalling that pollution is a cost rather than an intrinsic wrong.62

56 Broome, Climate Matters: Ethics in a Warming World, 41. 57 Ibid., 42. 58 Simon Caney and Cameron Hepburn, ‘Carbon Trading: Unethical, Unjust and Ineffective?’, Royal Institute of Philosophy Supplements 69 (2011): 204–206. 59 Ibid., 206. 60 Ibid. 61 Michael J. Sandel, What Money Can’t Buy: The Moral Limits of Markets (London: Penguin Books, 2012): 76–78. 62 Ibid., 72–76.

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Carbon Offsets Carbon offsets are another method of minimizing waste and distributing wealth to poorer countries to help reduce their emissions.63 Like emissions trading, carbon offsets make the cost of emissions part of the polluter’s economic decision-making. It offers incentives for polluters to emit less carbon, or for potential polluters to avoid producing carbon emissions.64 If polluters must buy offsets to compensate for their emissions, they have an incentive to reduce emissions so that they need to purchase fewer offsets. The collective sacrifice argument against emissions trading can also be raised against purchasing carbon offsets. Sandel65 argues that the ability to purchase offsets creates a risk that purchasing them is perceived as discharging one’s responsibility towards the environment without changing environmentally damaging behaviours and attitudes. Carbon offsets also offer opportunities for corruption due to the asymmetric information involved.66 For carbon offsets to achieve their goals of reducing emissions, the funding provided must be used to prevent emissions that would otherwise occur if that funding is not supplied.67 Carbon offsets must fund projects that actually prevent emissions from occurring.

63 Caney and Hepburn, ‘Carbon Trading: Unethical, Unjust and Ineffective?’, 204. 64 Broome, Climate Matters: Ethics in a Warming World, 92. 65 Sandel, What Money Can’t Buy: The Moral Limits of Markets, 77. 66 Caney and Hepburn, ‘Carbon Trading: Unethical, Unjust and Ineffective?’, 204. 67 Broome, Climate Matters: Ethics in a Warming World, 94–95.

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Chapter 2

A Comprehensive Framework for Evaluating the Integrity of the Climate Regime Complex Hugh Breakey and Tim Cadman

Introduction This chapter introduces and applies what we term the ‘Comprehensive Integrity Framework’.1 The Framework distinguishes key concepts of integrity, and this chapter illustrates these distinctions with application to the global climate change regime. In so doing, the chapter defines a number of key terms used throughout this volume, including the Public Institutional Justification (PIJ), consistency-integrity, coherence-integrity and context-integrity. In brief, consistency-integrity refers to the institution’s acts and judges whether such acts are consistent with the institution’s public proclamations. Coherence-integrity refers to internal organizational arrangements and members’ values; it judges whether these institutional qualities cohere in ensuring the institution’s professed values are reflectively endorsed and consistently implemented. Context-integrity refers to the environment surrounding the institution, and whether this context aligns with the institution’s successful pursuit of its goals. To have comprehensiveintegrity requires the institution coheres around its values, behaves in a way that is consistent with its public claims and enjoys a context that supports it doing so. As it might be put, the institution is integrated with its words, deeds, internal qualities and external environment. Core Concepts of Institutional Integrity Comprehensive-Integrity An institution has comprehensive-integrity if its activities, values and ethics, internal organization and external relations accord with its PIJ. This definition draws on the two inter-related ideas that integrity involves acting in accord with one’s publicly asserted values (‘consistency’) as well as being integrated (‘coherent’). It also includes attention to the way the institution fits with its external environment (‘context’). Comprehensive-integrity requires coherence-integrity, contextintegrity and consistency-integrity on an ongoing basis.

1 For a full explanation and defense of the Comprehensive Integrity Framework, see Hugh Breakey, Tim Cadman, and Charles Sampford, ‘Conceptualizing Personal and Institutional Integrity: The Comprehensive Integrity Framework’, Research in Ethical Issues in Organizations 14 (2015 in press).

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Public Institutional Justification To have integrity, institutions require a ‘Public Institutional Justification’ (PIJ). Usually including an account of the purpose of the institution (what it is ‘for’), the PIJ is what the institution’s members and representatives use to justify the institution and to show the public it deserves their support or at least tolerance.2 When the institution’s actions, powers or existence are called into question, institutional members and representatives aim to re-establish its credentials by asserting its PIJ. While the PIJ is wholly chosen by the institution-members/representatives, it nevertheless reflects wider community values, as local communities and relevant stakeholders make up the audience for the justification. Sometimes little more than a slick public relations document, the PIJ can be a mere fiction. At the other extreme, the PIJ might be strictly mandated in the institution’s legal charter. To attain institutional integrity, an organization must not merely assert a PIJ, but must live up to it. Consistency-Integrity If an institution’s activities are consistent with its PIJ, then it has consistency-integrity and may be said to ‘act with’ integrity. For institutions, consistency-integrity is arguably the key organizing concept: it is natural to ask whether the institution’s acts accord with its words – and often much of social import hangs on the answer to this question. While much as our intuitive notion of personal integrity orbits around internal factors such as character and intention (and so of what we call ‘coherence-integrity’),3 much of the concern for institutional integrity focuses centrally on the importance of compliance. Integrity breaches, integrity violations, integrity measures and integrity organizations (such as corruption watchdogs and ombudsmen) all focus on institutions and institution-members’ actions, and the gap between those actions and laws, regulations, professional responsibilities and codes of conduct.4 Coherence-Integrity Coherence-integrity comprises two factors: members’ values and internal organizational arrangements. ‘Members’ values’ refers to the personal values, moral commitments, role-identities, professional ethos and other relevant ideals held by the institution’s members – ‘relevant’ insofar as they contribute to the institution pursuing its PIJ. These members’ values do not need to be exactly the same as each other, nor must they perfectly reflect the PIJ. However, the values do have to be

2 Noel Preston and Charles Sampford, ‘Institutionalising Ethics’, in Encouraging Ethics and Challenging Corruption, ed. Charles Sampford, Noel Preston, and Carmel Connors (Sydney: The Federation Press, 2002): 32–68. Many accounts of institutional integrity (or governance) include reference to a similar entity to the PIJ: For example, Daniel E. Wueste, We Need to Talk … About Institutional Integrity (New York: RIT Press, 2005); Allen Buchanan and Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs 20, no. 4 (2006). 3 See, for example, Damian Cox, Marguerite La Caze, and Michael Levine, Integrity and the Fragile Self (Aldershot: Ashgate, 2009). 4 Thus in the institutional context, Huberts can assert that ‘the integrity concept concerns behaviour’ rather than character or intention. Leo Huberts, The Integrity of Governance: What It Is, What We Know, What Is Done, and Where to Go (Basingstoke: Palgrave Macmillan, 2014): 7.

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congruent with the PIJ. To possess strong coherence-integrity, the institution’s members must have values that drive them to act in accordance with the institution’s over-arching goals and principles. ‘Internal organizational arrangements’ encompass the processes governing how the institution makes its decisions, the structures it employs for policing and encouraging compliance with those decisions, its policies on transparency, accountability and critical feedback, and any other arrangements that impact upon it living up to its PIJ. These internal organizational arrangements are those the institution can exert direct control or influence over; they include purely intrainstitutional arrangements as well as those mediating the interface between the institution and the wider community. In the ideal institution, these two factors of members’ values and internal organizational arrangements ensure that the PIJ remains workable and acceptable to all those institution-members bound by the PIJ. An institution with coherence on values and organizational arrangements has high coherence-integrity, as all its pieces cohere together and drive in the same direction. We saw above that consistency-integrity compares an institution’s actions with its claimed values. Over a period of time, what does the institution do? In contradistinction, coherence-integrity compares an institution’s internal constitution with its claimed values. Rather than looking at activities, it looks at internal qualities and processes. It asks: What is the institution? If the institution is constituted so as to consistently live up to its claimed values (that is, constituted so as to display consistency-integrity), then it has coherence-integrity and we can say that the institution possesses integrity. Context-Integrity Context-integrity shifts our focus to the institution’s surrounding environment and all the elements in the environment that impact upon the institution living up to its claimed values. These elements include other organizations, parties, cultural norms, (economic, social and security) pressures, potential opportunities and temptations, and so on. Two contextual factors prove especially relevant. The institution’s legal context is made up by the over-arching (domestic and perhaps international) laws and regulations governing the institution in its processes and activities. And what we call the institution’s organizational-context refers to the organizations or institutional-complexes of which the institution forms one part. When one institution forms part of a larger regime, we will say it is ‘nested’ in that larger entity. The institution possesses ‘context-integrity’ if its external environment tends to facilitate the institution acting in accordance with its PIJ; that is, an institution’s context-integrity will promote that institution’s consistency-integrity. This might occur if the institution’s external environment prevents the institution from failing to comply with its PIJ – for example by punishing it for breaches, or by limiting its raw power to act outside its mandate.5 Alternatively, the external environment might work in a more positive manner, by influencing the internal constitution of the institution so as to improve the institution’s coherence-integrity. There are three different ways a contextual factor, or the overall context, might impact upon the institution’s consistency-integrity. The context might, i) facilitate and empower the agent’s integrity; ii) thwart and retard the agent’s integrity; or iii) align with the agent’s integrity. Since institutions often have divergent purposes, merely ensuring an accord (rather than positive facilitation) between the institutions’ pursuits of their different PIJs is often an important achievement. 5 Hugh Breakey, ‘Dividing to Conquer: Employing the Separation of Powers to Structure Institutional Inter-Relations’, Research in Ethical Issues in Organizations 12 (2014).

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‘Integrity System’ Together the internal qualities of the institution, and the qualities of its external environment, make up the institution’s ‘integrity system’.6 The integrity system is therefore constituted by the combination of the institution’s coherence-integrity and context-integrity. It encompasses all the ‘business-as-usual’ operations and factors in the agent’s world and is the natural object of reform for those attempting to improve institutional integrity. Contingency What activities the institution performs, and what effects those activities have, emerge from both the institution’s coherence-integrity (what it is) and its context-integrity (how its environment impacts upon it). But as well as these stable, ongoing factors, other events can occur that create new and unforeseen dynamics or pressures. In a given case, whether or not these events impact upon the institution’s pursuit of its claimed values is a matter of ‘contingency’. Contingency constitutes ‘sudden shocks,’ unprepared-for exceptions, and surprise events. Together, the three causal elements of coherence-integrity, context-integrity and contingency determine the activities of the institution and the extent to which they accord with its PIJ. As a result, in any given case, coherence-integrity, context and contingency together determine consistencyintegrity. Nested Institutions An institution can be one part of a larger institutional complex that has its own PIJ and undertakes its own activities and tasks on a larger scale. In this case we will call the institution one ‘subinstitution’ nested within a larger ‘regime’. The sub-institution’s PIJ may accord tightly with the regime’s PIJ. Indeed, an essential part of the sub-institution’s PIJ may be that the sub-institution plays an integral, official part in the regime’s pursuit of the regime’s PIJ. The sub-institution may even be legally obliged to play this role. In this case the sub-institution is a ‘formal’ part of the regime. When the sub-institution’s PIJ accords closely with the regime’s PIJ, the sub-institution’s consistency-integrity will contribute to the regime’s consistency-integrity (and, equally, a regime’s consistency-integrity may facilitate the institution’s consistency-integrity). Alternatively, the subinstitution may link less officially with the larger regime; its PIJ may only accord more loosely with the regime’s PIJ, and it is only an ‘informal’ part of the regime. This may mean that while an informal sub-institution’s activities usually support the regime’s PIJ, sometimes its priorities will diverge, and its consistency-integrity (its actions in accord with its own PIJ) may run counter to the regime’s consistency-integrity. In international governance, for example, states can feature as nested institutions alongside other bodies in larger regimes – regimes that aim to implement overarching goals. These states play a lynchpin role in the larger regime, yet they nevertheless possess their own separate interests. These interests can drive the state to promote collective goals – or equally to spoil attempts at achieving such goals.

6 Preston and Sampford, ‘Institutionalising Ethics.’; Charles Sampford, Rodney Smith, and A.J. Brown, ‘From Greek Temple to Bird’s Nest: Towards a Theory of Coherence and Mutual Accountability for National Integrity Systems,’ Australian Journal of Public Administration 64, no. 2 (2005).

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Internal and External Scope The ‘institution’ chosen as the object of study through the Comprehensive Integrity Framework can be larger or smaller (with the proviso that each institution or sub-institution must possess a PIJ). The conceptual system remains the same when scaled up or down. At the smaller scale (for example, shifting from a specific policy mechanism to one of its sub-committees), relations or arrangements that previously featured under ‘coherence-integrity’ would then be considered as external relations (that is, external to the sub-committee) within a larger regime under ‘context’. Likewise, when scaled up (for example, from the policy mechanism to the larger regime), relations and arrangements that featured under external context would now be captured within the internal arrangements of coherence-integrity. The following section provides an example of this shift in scope from the larger regime to a specific nested institution. Climate Regime Applications The conceptual and terminological system described in the previous section can be applied to institutions at different levels within the global climate regime. By way of illustration and as a frame to many of the forthcoming chapters, this chapter applies the Comprehensive Integrity Framework concepts and terminology to two important climate organizations. First, we apply the framework to the global climate regime complex as a whole, framed around the UN Framework Convention on Climate Change (UNFCCC). Next, we employ the framework in analysing one illustrative sub-institution nested within the UNFCCC – the Clean Development Mechanism (CDM). Over-Arching Climate Regime: The UNFCCC Figure 2.1 maps the UNFCCC using the Comprehensive Integrity Framework. The core of the regime’s PIJ is provided by the Convention’s Objective, given in its Art. 2. The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties (COP) may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas (GHG) concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.7 The UNFCCC’s principles, and ongoing scientific and COP developments since 1992, help to flesh out and specify this PIJ.8 The UNFCCC’s coherence-integrity comprises two factors. First, ‘members’ values’ refers to the relevant norms, ideals, role-identities and interests of all of the members of the UNFCCC and its sub-institutions. To hold coherence-integrity, the UNFCCC’s members would need to have values and interests that are broadly congruent with the UNFCCC’s PIJ – motives that help drive the UNFCCC to succeed in its purposes.

7 United Nations (UN), ‘United Nations Framework Convention on Climate Change’ (1992). 8 See Maguire, Chapter 3 in this volume for a comprehensive treatment of this issue.

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The second factor of the UNFCCC’s coherence-integrity consists of its internal organization arrangements. The key components here include the myriad decision-making bodies and subinstitutions and the relations between these, including the ways that authority, resources and information flow through the system. In Figure 2.1, for brevity we note a just handful of ‘nested’ sub-institutions: the COP; the permanent subsidiary bodies (responsible to the COP for scientific and technical advice and implementation, and which oversee the various negotiations, including the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP, the emerging replacement for the Kyoto Protocol); as well as the mechanisms under the Convention and the Protocol (for example, the Clean Development Mechanism, CDM, now moribund). But, of course, the full UNFCCC regime is vastly more complex than this brief summary suggests.9 The UNFCCC’s context impacts substantially on its capacity to operate effectively. Factors comprising context-integrity can be categorized on a variety of different dimensions. In Figure 2.1 we note three key factors: legal context, organizational context and external relations. The legal context consists of the larger international legal architecture overarching the UNFCCC’s actions, including all aspects of international law (such as the UN Charter and human rights frameworks).10 Its organizational context situates the UNFCCC as itself one sub-institution of the larger institutions of the United Nations, and looks to the UNFCCC’s inter-relationship with, for example, the UN Secretariat and the General Assembly. Fully external relations are those interactions with entities that the UNFCCC is not itself part of or governed by. Notable organizations here include the World Trade Organization,11 external scientific and media bodies,12 and climate and humanitarian NGOs. Contingency refers to dynamic events outside business-as-usual within the institutional complex, including extreme weather events and security and economic crises that impact upon UNFCCC deliberation and implementation. Together, the factors making up coherence-integrity, context-integrity and contingency drive the actions of the UNFCCC and determine the results following from those actions. Whether these actions and achievements secure the UNFCCC’s PIJ is reflected in its consistency-integrity. Together, the three factors of coherence-integrity (what is the institution?), context-integrity (what is its environment?) and consistency-integrity (what does it do?) together constitute its comprehensive-integrity. Nested Institution: The Clean Development Mechanism (CDM) Figure 2.2 provides an example of the application of the same conceptual apparatus (the Comprehensive Integrity Framework) applied to another institution – this time, a sub-institution nested inside the UNFCCC, the CDM. Under the Kyoto Protocol, the role of the CDM was to act as a mechanism for developing countries to earn Certified Emission Reduction credits (CERs) via emission-reduction projects. Under the Protocol, credits could be used by industrialized countries to meet their emissionreduction targets for the purpose of facilitating overall carbon mitigation. The CDM has now expired, but may continue in some form. As with the analysis of the UNFCCC, ‘members’ values’ refers to the relevant role moralities and identities – this time concerned only with the values of members of the CDM, and not 9 See Cadman, Chapter 4 in this volume. 10 On the latter, see Lewis, Chapter 14 in this volume. 11 See Deane, Chapter 6 in this volume. 12 See Coady, Chapter 13 in this volume.

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the UNFCCC more generally. Internal organizational arrangements refer to the CDM’s subcomponents. The CDM Executive Board (CDM EB) supervises project approvals, and is both guided by and accountable to the COP, meeting as the Parties to the Convention (CMP). The Board acts as a point of contact for CDM project participants for the registration of projects and the issuance of CERs. The CDM EB approves Designated Operational Entities (DOE), who are private certifiers that validate projects and verify emission reductions under the auspices of the Designated National Authority (DNA) – who itself approves projects and facilitates participation.13 For the CDM, elements that in Figure 2.1 were part of the UNFCCC’s coherence-integrity have now shifted to the rubric of context-integrity on CDM’s map. The legal arrangements of the UNFCCC now comprise part of the CDM’s larger legal context, while other parts of the Kyoto Protocol’s flexible mechanism, including the Joint Implementation and Emissions Trading, form part of the CDM’s organizational context. These and other external elements combine with the CDM’s coherence-integrity (and with sudden, contingent events) to produce the CDM’s activities and to determine their successfulness relative to its PIJ. Again, comprehensive-integrity pulls together internal and external factors, and the actual behaviour of the institution, all mapped against the standard of its PIJ. Ethics and Values in the Comprehensive Integrity Framework Looking through the prism of the Comprehensive Integrity Framework, how do ethical values appear in, and impact upon, global climate integrity? While the following chapters investigate different issues in greater depth, here we sketch some of the main ways that norms and values – both actual social values held by agents and institutions, and normative moral theories prescribing what should be done – impact upon institutional integrity. Let’s begin by reflecting on agents’ existing social values – that is, the actual ethical ideals and role-moralities held by various individuals and groups. This is a question of ‘descriptive morality’, as might be studied by anthropologists. The ‘members’ values’ element of the Comprehensive Integrity Framework directly references these social values – in this case, the norms, principles and professional ethos held by an institution’s members. As noted above, these values remain distinct from the PIJ, but in the ideal case they contribute to the formation of the PIJ, and to the institution’s capacity to live up to it. As internal qualities of the institution that bear on its capacity to hold to its values, these values form part of its coherence-integrity.14 An exploration of members’ values thus helps us determine an institution’s coherence-integrity. On a similar theme, we can look to the institution’s internal organizational arrangements and consider how far these encourage or erode institution-members’ social values and personal integrity. Institutional design can impact upon institutional culture, and so on the development and maintenance of members’ ethics and integrity.15

13 Clean Development Mechanism (CDM), ‘Governance’ (2015), http://cdm.unfccc.int/EB/governance. html (accessed 15 May 2015). 14 For a discussion of the nature of these values (through an examination of the principle of ‘Common But Differentiated Responsibility’), see Maguire, Chapter 3 in this volume. For a discussion of strategies for expanding the overlapping consensus on these values, see Breakey, Chapter 17 in this volume. 15 For examples, see David Luban, ‘Integrity: Its Causes and Cures’, Fordham Law Review 72, no. 2 (2003); Hugh Breakey, ‘Wired to Fail: Virtue and Dysfunction in Baltimore’s Narrative’, Research in Ethical Issues in Organizations 11 (2014).

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Social values outside the institution can also impact upon the institution’s selection of its PIJ, and its capacity to live up its PIJ.16 Recall that the PIJ is formed by institution-members and representatives working out how to ethically defend the institution, and to elicit support and tolerance for it, from relevant (for example, local and stakeholder) communities. To be effective in this role, the PIJ needs to tap into the values permeating the community. The PIJ thus represents a point of balance between the ideals and interests of the institution-members and those of the community.17 As such, prevalent community views about harm, pollution, collective responsibility and other normative concepts impact on what PIJ is formed. Once the PIJ is set down, the relationship between the PIJ, the actual behaviour of the institution and the community’s values continues to be important. If there is a chasm between accepted values and the institution’s public behaviour – or even worse between the accepted values and the institution’s PIJ itself – then the environment becomes more hostile to the institution’s existence and effective functioning. As such, exploring social values within relevant communities can help us understand the institution’s context-integrity. Turning now from descriptive morality to normative morality – from the social norms that anthropologists locate in people and cultures to the prescriptive claims set down in philosophical theories – there are several ways moral theorizing can helpfully engage with integrity systems, so understood. Prescriptive moral theory can be used to assess the acceptability of an institution’s PIJ, or of its members’ norms and values.18 This does not necessarily mean we can simply ‘read off’ what an institution’s PIJ or members’ values should be from a given moral theory; integrity involves agents and institutions taking upon themselves certain responsibilities, and deciding what they stand for. Even so, moral theories can help guide this process – for example by telling us if members’ values grant appropriate respect for the institution’s needs, or alternatively if the member’s privilege the institution’s demands too far above legitimate social responsibilities. Naturally, such theorizing cannot fully replace the personal and institutional reflection that characterizes the formation of human values and purposes. So too, to be effective in furthering the PIJ in complex and challenging circumstances, characterized by other agents acting in nonideal ways, members’ values will often need to depart from what they would be an idealized world. As such, we can gain much from reflecting on the PIJ through the lens of moral theory, but we need to take care in presuming abstract principles will always work successfully in a complicated world. Staying ‘inside’ the institution (that is, staying in the realm of coherence-integrity), we can explore whether certain types of independently desirable moral values might help promote the institution’s integrity. Consider, for example, the norms of procedural justice – requiring inclusive decision-making, stakeholder representation, constructive deliberation and certain forms of accountability and transparency.19 Such norms might be useful for securing the 16 On human rights as social values, and the way they can impact on the climate regime, see Rimmer, Chapter 15 in this volume. 17 Huberts goes so far as to allow the different relevant communities to determine what counts as the relevant rules for possessing integrity. In our view, this descriptively maps poorly onto integrity issues outside public administration (Huberts’s focus), and normatively gives too much power to external agents. As well, it threatens to collapse all distinction between integrity and morality more generally. For this reason we stress the institution itself as the ultimate decision-maker on what its PIJ will be. But Huberts is clearly correct that community values and expectations impact profoundly on the substance of what integrity requires. See, The Integrity of Governance, 12. 18 See Goyal, Chapter 9 and Pickering, Chapter 7 in this volume. 19 See Cadman, Chapter 4 in this volume.

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institution’s purposes, as well as for reasons of natural justice. Encouraging such universal norms in members, and realizing them in institutional processes, might therefore nourish the organization’s more particular goals. Moral theory can also extend its gaze beyond the institution itself, and interrogate the moral values of the wider community, or influential members of that community. Are the values here, which ideally should be improving the institution’s behaviour by bringing it in line with more social, objective standards, playing an appropriate role? For it is always possible that these community values will prove problematic from an objective standpoint. A perennial concern is that these values may make infeasible and inappropriate demands on the institution, given the constraints under which the institution operates, and so setting it up for inevitable failure. Conclusion This chapter has introduced the Comprehensive Integrity Framework as it applies to institutions, and has employed that framework to map the key factors and concepts at work in the global carbon integrity system, including reference to the global integrity regime (the UNFCCC) and to one of its sub-institutions (the CDM). In the final section, with an eye to the core themes of the present volume, we reflected on the various ways moral values impact upon key elements – especially the coherence-integrity and context-integrity – of integrity systems. In conclusion, as we move towards the post-Paris climate regime, understanding the complex and multifaceted structure of integrity systems in the ways set out in this chapter – and more fully in this volume – can help us construct agreements and mechanisms capable of fulfilling the roles we need them to play. Ultimately, whether a given global climate institution will fulfil its raison d’être (and act with consistency-integrity) requires attention to the formulation of its professed goals and mandated actions (its PIJ), the values driving its members and the internal arrangements that develop and implement its decisions (its coherence-integrity), and the wider legal, organizational, social, political and economic environment surrounding it (its context-integrity). To have any hope of squarely confronting the deep challenges posed by climate change during the critical post-Paris phase, institutional design and policy reform must pay attention to each of these elements, and the dynamic interplay between them.

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PART I Injecting Ethics into Governance Arrangements

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Chapter 3

Mapping the Integrity of Differential Obligations within the United Nations Framework Convention on Climate Change Rowena Maguire

Introduction This chapter unpacks public institutional integrity concepts through an examination of differential obligations within the global climate regime. Getting global consensus on the how the principle of Common But Differentiated Responsibility (CBDR) should apply within the 2020 Climate Regime is one of the most contentious issues within the negotiations. CBDR is one of core founding ethical principles of the global climate regime and generates much debate, as it is the principle used to determine the legally binding obligations of parties to the United Nations Framework Convention on Climate Change (UNFCCC). As such, and in the terminology of Chapter 2’s Comprehensive Integrity Framework, the integrity of the UNFCCC can be assessed by: identifying the Public Institutional Justification (PIJ) of the regime; considering whether there is coherence of values in the interpretation of the principle and the PIJ and by examining the coherence-integrity of the regime by exploring the processes that have been involved in reconsidering the principle for the 2020 Climate Instrument. While CBDR shapes both mitigation and adaptation commitments, this chapter will focus on the interpretation of the principle in respect of legally binding mitigation obligations as this is where the principle has been most fiercely debated. The contention over differential treatment within the UNFCCC surrounds the perceived comparative advantage that developing countries obtain by not holding legally binding emission reduction commitments. The inequitable benefit received by developing nations in this lens, is an economic benefit as it is currently more cost efficient to use non-renewable or high-emission technologies as oppose to renewable or low-emission technologies. Attaptu suggests that differential treatment has become the price to be paid in order to ensure universal participation in environmental agreements concerned with global problems.1 Moreover most global environmental destruction has been linked with the western world’s development and the processes of colonization and industrialization. As such, it is recognized that developed nations, many of whom are western nations, are the ones historically responsible for global environmental degradation. Developing nations have generally sought to preserve their right to development within all international environmental negotiations and will refuse to participate in environmental treaties when they feel that the instrument is one sided. Developing countries perceive themselves to be asked to manage their resources for the benefit of western interests. A statement from the Prime Minister of Malaysia at the Earth Summit negotiations states the position of eloquently: 1 Sumudu A. Atapattu, Emerging Principles of International Environmental Law (Leiden: Martinus Nijhoff Publishers, 2006): 380.

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The poor are not asking for charity. When the rich chopped down their own forests, built their own poison-belching factories and scoured the world for cheap resources, the poor said nothing. Indeed they paid for the development of the rich. Now the rich regulate the development of the poor countries. And yet any suggestion that the rich compensate the poor adequately is regarded as outrageous. As colonies we were exploited. Now as independent nations are we to be equally exploited.2

As such the principle of CBDR has been used to ensure that marginalized groups were given special recognition of their development status and priorities in international environmental agreements. All of the international instruments adopted at the Earth Summit in 1992 acknowledged the historical responsibility of the developed world and the development priorities of the developing world. The UNFCCC specifically recognized the principle within the text of the agreement and the Kyoto Protocol adopted under the Convention applied the principle of CBDR to form two categories of membership: one with legally binding mitigation obligations (developed/industrialized nations) and one without legally binding mitigation obligations (developing nations). However, some developed nations felt that this interpretation of CBDR went too far and gave an inequitable advantage particularly to large developing nations. This lack of coherence-integrity over the definition of CBDR has stymied the UNFCCC processes as two camps of developed nations positions appeared: one camp led by the European Union (EU) who was willing to abide with stringent liability for developed nations and a camp led by the United States (US) who were not willing to accept legally binding obligations for developed nations only. This stalemate has significantly slowed the global community’s desire to deal with climate change and this tension has bubbled under the surface at each annual Conference of Parties (COP) negotiations. In addition to this tension surrounding the interpretation of CBDR within the regime, significant global economic changes have taken place since the adoption of the Convention in 1992, producing challenging context-integrity circumstances. First, the Global Financial Crisis directed attention away from perceived costly climate change measures and many of the climate market mechanisms in trial within the EU were negatively affected by this, in addition to facing some structural issues concerning pricing and allocation of carbon credits. These shortcomings strengthened the position of the states critical of the Kyoto Protocol and the arguments of many non-state actors who had been critical of market mechanisms. Second, there has been a significant shift in the world’s leading economies. Within the UNFCCC negotiations, these nations are referred to as the BASIC Nations (Brazil, South Africa, India and China). In 2007 BASIC countries accounted for nearly 60 per cent of total annual emissions from non-Annex I countries and around 29 per cent of total global emissions.3 The top three emitters are China, the United States and India and rather perversely the Kyoto Protocol does not apply to any of these nations. As such there is an urgent need to include nations such as BASIC and other outsider Kyoto nations such as the US within a legally binding framework to address climate change. The challenge for the 2020 Climate Instrument will lie in getting the balance right between recognizing historical contributions to global greenhouse gas (GHG) emissions while also finding a way to include all major emitters including nations such as BASIC to adopt legally binding mitigation commitments. The interpretation of CBDR under the 2020 Climate Instrument is thus integral to achieving this balance. 2 United Nations, ‘Earth Summit: Statement of Forest Principles – Report of the United Nations Conference on Environment and Development’ (1992): Vol. III, 23. 3 Karl Hallding et al., Together Alone: Basic Countries and the Climate Change Conundrum (Copenhagen: Nordic Council of Ministers, 2011): 32.

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Public Institutional Justification of the Global Climate Regime The global climate regime can be considered to have full integrity if its activities, values, ethics, internal organization and external relations accord with its PIJ. In order for an institution such as the UNFCCC to have full integrity it must act in accordance with publicly asserted values (consistency-integrity), as well as integrating its internal operations so that operations work towards promoting its PIJ (coherence-integrity).4 The PIJ of the global climate regime is to is found in Article 2 of the Convention, which requires the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.5

Article 2 applies not only to the Convention, but also to any related legal instrument that the COP adopts (such as the 2020 Climate Instrument). The PIJ is framed as environmental quality standard,6 and as such it does not prohibit the emission of GHGs; but rather seeks to restrict emission activities when they exceed a certain threshold (that of dangerous anthropogenic interference). The PIJ requires change to take place, so as to not affect: ecosystem adaptation, food security and economic development occurring in a sustainable manner. During the drafting of the Convention, some parties such as: European Countries, Canada, Australia and New Zealand wanted a PIJ which included specific targets and timetables, with the initial goal of stabilizing carbon dioxide at current levels.7 The US, Japan and the former Soviet Union did not want a specific target or timetable arguing that such mechanisms would be too rigid given the lack of scientific certainty regarding climate change. Developing country positions were also divided over this issue with the Alliance of Small Island States (AOSIS) pushing for targets and timetables, while other larger developing countries in the process of industrialization such as Brazil, China and India questioned the science of climate change arguing that measures must not impinge upon their sovereign rights to development.8 Such varying perspectives led to adoption of the current PIJ wording which, while stopping short of setting rigid targets and timelines, attempts to impose an environmental quality standard as a target. It took some time for global consensus to form over what could be considered ‘dangerous anthropogenic interference’. The Fourth Assessment Report (AR4) of the Intergovernmental Panel on Climate Change (IPCC) notes that the definition of ‘dangerous anthropogenic interference’ is a complex task that can only be partially informed by science as it also involves considerations of economic, ethical and legal judgements.9 The AR4 stated that determining the choice of a 4 See Breakey/Cadman, Chapter 2 in this volume. 5 ‘The Kyoto Protocol to the United Nations Framework Convention on Climate Change’ (37 ILM 22, Article 10, 1998). 6 Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (Cambridge: Cambridge University Press, 2004): 61. 7 Daniel Bodansky, ‘The History of the Global Climate Change Regime’, in International Relations and Global Climate Change, ed. Urs Luterbacher and Deflet Sprinz (Massachusetts: MIT Press, 2001): 29. 8 Ibid., 31. 9 The AR4 focused on key vulnerabilities related to Article 2 objective. These key vulnerabilities can be broadly categories into: biological systems, social systems, geophysical systems, extreme events

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stabilization level implies a process that balances the risk of climate change against the risk that response measures will have on economic sustainability. The AR4 describes the criteria of enabling economic development to proceed in a sustainable manner as a double-edged sword, hinting at the difficulty of defining and implementing the objective of the UNFCCC.10 While the AR4 stopped short of defining ‘dangerous anthropogenic interference’, it did provide a specific temperature goal by stating that ‘a 2 degree temperature increase to be the upper limit beyond which the risk of grave damage to ecosystems and non-linear responses are expected to increase rapidly’.11 This temperature goal has been picked up in a number of subsequent COP decisions. For example the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention acknowledged the AR4 finding by stating that ‘deep cuts in global greenhouse gas emissions are required so as to hold the increase in global average temperature below 2°C above preindustrial levels, and that parties should take urgent action to meet this long-term goal consistent with science and on the basis of equity’.12 Not all state parties are happy with the 2°C target, with the AOSIS pushing for 1.5°C warming limit.13 The first draft text for 2020 climate instrument14 contains a number of proposals for including a temperature bound goal of 1.5–2°C within the text. There are a number of options as to where such a goal could be included such as within the preamble (downside being that is not legally binding) or within the objective of mitigation sections, which would make this goal legally binding. Regardless of where the temperature goal is included, it is suggested that the PIJ of the 2020 Climate Instrument will be to prevent dangerous anthropogenic warming by limiting warming to 1.5–2°C. Role of Climate Principles and Values Coherence In order for the global climate regime to achieve it’s PIJ (preventing dangerous anthropogenic warming beyond 1.5–2°C) there is a great need to consider values coherence by examining if there is shared understanding among state parties of the collective way forward to meet the PIJ. The preamble15 and Article 3 of the Convention sets out a number of international environmental principles applicable to the global climate regime. These principles guide the implementation of the instrument and assist the regime in meeting its PIJ. and regional systems. See H-Holger Rogner et al., ‘Introduction’, in Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, ed. Bert. Metz, et al. (Cambridge, United Kingdom and New York, USA: Cambridge University Press, 2007): 100. 10 Ibid. 11 Ibid., 99. 12 United Nations, ‘Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention’ (Decision 2/CP.17, UN Doc. FCCC/CP/2011/9/Add.1, Section II, Preamble, 15 March 2012). 13 UN Climate Change Newsroom, ‘Statement by Nauru on behalf of the AOSIS at the Opening of the Ad Hoc Working Group on the Durban Platform for Enhanced Action, 12 November, Warsaw, Poland’, http:// unfccc.int (accessed 6 May 2015). 14 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Negotiating Text: Work of the Contact Group on Item 3 (Geneva: UNFCCC, 2015). http://unfccc.int/files/bodies/awg/application/pdf/ [email protected] (accessed 5 May 2015). 15 Many of the statements in the preamble were part of earlier draft texts of the UNFCCC, which were relegated to the preamble as they were considered to be too controversial for inclusion within the Articles of the Instrument. Yamin and Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures 67.

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There has been some debate over the need for principles within the global climate regime. The US did not want to include open-ended principles within the agreement due to concerns their inclusion would create additional commitments beyond those clearly spelled out within the Convention. Developing countries felt that it was essential to include principles within the Articles of the text to guide the implementation.16 The final text of the Convention adopts the developing country perspective, thus creating within Article 3 a normative framework to support the implementation of the Convention. As such the nature of the obligations imposed by Article 3 is deeply contested with some parties considering the principles to be obligatory, while others contend that application of these principles is discretionary. There was also debate about whether the 2020 Climate Instrument would be bound by these principles, however Article 3 of the Convention mandates that the principles are applicable to all other instruments of the regime. There are four international environmental principles within Article 3 of the Convention (intergenerational equity, CBDR, the precautionary principle and sustainable development). As these principles guide the implementation of the Convention, the use and interpretation of these principles has great significance when considering values coherence-integrity. Clearly, interpretations of these principles that align with promoting the PIJ of regime would be the most desirable. The most contentious principle within the global climate regime is CBDR as it is the norm that defines the mitigation obligations of developed and developing countries and as such will be the focus of this chapter. As discussed by Breakey in Chapter 17 of this collection, functional norms or principles are targeted principles designed to solve a particular problem in a reasonable and morally respectable way. Breakey and Maguire therefore argue that the policy interpretation of functional norms such as CBDR: • should be realistically capable of solving the problem; • must not be patently unjust or unreasonable, it must be morally defensible; • must not rely on or apply one single, controversial, metaphysical, regional or comprehensive global theory of justice; • must set aside, so far as possible, other concerns and controversies, unless it can be shown that inclusion of these issues will facilitate an improved result; • must be a decent compromise, it must incorporate concerns from all reasonable good faith positions; • must, so as far as possible, accord with other prevailing norms (for example, human rights, sovereignty, international trade). CBDR adopts a substantive approach to justice by recognizing that different groups before the law require different rights and responsibilities. In interpreting this principle it is useful to separate ethical interpretations and the policy interpretations of the principle. The principle is underpinned by the following ethical considerations:17 • the common responsibility of all states to protect the environment; • certain states bear historical responsibility for pre-1990 emissions; 16 Daniel Bodansky, ‘The United Nations Framework Convention on Climate Change: A Commentary’, Yale Journal of International Law 18 (1993): 501. 17 List adapted from work of Angela Williams, ‘Promoting Justice within the International Legal System: Prospects for Climate Refugees’, in Climate Law and Developing Countries‬Legal and Policy Challenges for the World Economy, ed. Benjamin J. Richardson‬, et al. (Cheltenham: Edward Elgar, 2010): 90.

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• developing countries have entitlements to prioritize development and thus increase their emissions, at least in the near term; • some developing countries lack capacity to proactively mitigate climate change without support; • vulnerable developing countries lack capacity for effective adaptation that developed countries enjoy. The principle therefore, recognizes the historical differences in the contribution of developed and developing countries to climate change and the difference in their respective economic and technical capacity to respond to these problems.18 The policy interpretation of CBDR under the UNFCCC is found in Article 3(1) of the UNFCCC, which requires that: The Parties should protect the climate system for the benefit of present and future generations of human kind on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

Article 3(3) and Article 3(4) provide further support for differential climate action. Article 3(3) provides that climate policies and measures must take into account different socio-economic contexts and Article 3(4) requires that climate policies and measures should be appropriate for the specific conditions of each party, should be integrated with national development programmes and should take into account that economic development is essential for adopting measures to address climate change. The policy interpretation of CBDR under the Kyoto Protocol resulted in only Annex I (developed nations) holding legally binding mitigation commitments. This type of differentiation (differentiation in obligation) changed the character of CBDR at the international level. Earlier interpretation of CBDR, for example under the Montreal Protocol on Substances that Deplete the Ozone Layer19 (Montreal Protocol), allowed for differentiation in timing by giving developing countries delayed compliance schedules,20 different baseline requirements21 and created obligations for developed countries to provide financial and technological assistance.22 Thus the differential obligations under the Montreal Protocol ‘were designed to assist developing countries in meeting their commitments under the relevant treaty, not to exclude or protect them from particular commitments’.23 This can be contrasted with the Kyoto Protocol policy interpretation.24 As Rajamani writes: 18 Kati Kulovesi and Maria Gutierrez, ‘Climate Change Negotiations Update: Process and Prospects for a Copenhagen Agreed Outcome in December 2009’, Review of European Community and International Environmental Law 18 (2009): 236. 19 ‘Montreal Protocol on Substances That Deplete the Ozone Layer’ (1522 UNTS 3; 26 ILM 1550, 16 September 1987), Preamble. 20 Ibid., art. 5. 21 Ibid., art. 5(3). 22 Ibid., art. 10(a). 23 Lavanya Rajamani, ‘The Changing Fortunes of Differential Treatment in the Evolution of International Environmental Law’, International Affairs 88 (2012): 608. 24 Article 10 of the Protocol seeks to reinforce the obligations created under the UNFCCC and requires both industrial and non-industrialized parties to take mitigation steps in accordance with the principle of CBDR and their specific national and regional development priorities, but it does not require for these actions to be reported upon by non-industrialized parties. For further analysis on the background on the CBDR and

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[t]he Kyoto Protocol bears tremendous significance for developing countries as it endorses a unique form of differentiation in their favour, and captures a model of developed country leadership yet to be seen elsewhere. But it is precisely this form of differential treatment and this model of developed country leadership that have proven contentious.25

The lack of binding emission-reduction obligations for all parties to the UNFCCC under the Kyoto Protocol has remained one of the most controversial issues causing divisions among developed countries between those willing to abide by this model of differentiation (EU) and those unwilling to accept it (US). The obligations of Annex I parties under the Kyoto Protocol under the two commitments periods requires: • During the first commitment period, 37 industrial nations were required to reduce their overall emissions by at least 5 per cent below 1990 levels (2008–2012).26 • During the second commitment period, 38 parties27 are required to reduce their overall emissions by at least 18 per cent below 1990 levels in the commitment period 2013– 2020.28 Not all parties to the UNFCCC are parties to the Kyoto Protocol. The US withdrew before ratification of the first commitment period; Canada withdrew after it ratified the Kyoto Protocol but before the second commitment period; and Japan, Russia and New Zealand have communicated that they are not planning to ratify the Doha Amendment.29 The second commitment period now covers only 15 per cent of global emissions30 and as such there is a real need for the 2020 climate instrument to find consensus on a new interpretation of differentiation that will ensure that the PIJ of the regime is upheld. The current policy interpretation of CBDR under the Kyoto Protocol, does not assist the global climate regime in upholding its PIJ as too few countries hold legally binding mitigation commitments. More consensus is needed among the state parties to the UNFCCC on the formula or categorization that should apply in determining mitigation commitments. This lack of consistency-integrity, being the lack of alignment between the PIJ and the interpretation of one of the regimes key norms is an area requiring reconsideration within the 2020 Climate Instrument.

its role in shaping differentiation: see Atapattu, International Law and Development: Emerging Principles of International Environmental Law. 25 ‘The Changing Fortunes of Differential Treatment in the Evolution of International Environmental Law’, 612. 26 ‘The Kyoto Protocol to the United Nations Framework’, art. 3(1). 27 Australia, Austria, Belarus, Belgium, Croatia, Cyprus, Czech Republic, Denmark, Estonia, European Union, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kazakhstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine and United Kingdom of Great Britain and Northern Ireland. 28 ‘Doha Amendment to the Kyoto Protocol’ (C.N.718.2012.TREATIES–XXVII.7.C (Depositary Notification), 24 November 2014): para. C. 29 Dalia Streimikiene, ‘The 18th Session of the Conference If the parties to the United Nations Convention on Climate Change (UNFCCC)’, Intellectual Economics 7 (2013): 256. 30 The top ten nations in terms of total CO2 emission are China, USA, India, Russia, Japan, Germany, Canada, South Korea, Iran and the United Kingdom: see Subhabrata Banerjee, ‘A Climate for Change? Critical Reflections on the Durban United Nations Climate Change Conference’, Organisation Studies 33, no. 12 (2012): 1772–73.

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Coherence Integrity: Drafting of the 2020 Climate Instrument In order to examine the 2020 Climate Instrument policy interpretation of CBDR, it is necessary to look at the processes involved in the drafting of the new agreement. This coherence-integrity analysis will show the avenues for input from the various state parties’ ‘nested institutions’ and will also determine whether the processes within the UNFCCC assist the regime in meeting its PIJ. The reconsideration of the CBDR principle and its operation within the 2020 Climate Instrument is occurring under the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) which was launched to develop ‘a protocol, another legal instrument or an agreed outcome with legal force under Convention applicable to all parties’.31 This new agreement must be drafted by 2015 and will enter into force in 2020.32 At the Doha COP negotiations, state parties and accredited observer organizations were invited to submit information, views and proposals on matters related to the work of the ADP addressing aspects such as: the application of principles of the Convention; building on the experiences and lessons learned from other processes under the Convention and from other multilateral processes as appropriate; the scope, structure and design of the 2015 agreement and ways of defining and reflecting enhanced commitment.33 Parties made individual and group submissions.34 The parties’ submissions contained a diverse range of perspectives as to the appropriate ‘method of differentiation’,35 which can be summarized as: • differentiating countries: developed/developing (two room system) v. more sophisticated differentiation (for example developing three or more categories of membership); • mode of determining targets: top-down (targets set an international level based on scientific assessment) v. bottom-up pledges (self-differentiation); • ways of differentiation obligations for emissions: –– Kyoto Model (creates obligations only for developed countries) v. Montreal Model (which creates obligations for all countries, but gives developing countries more time – differentiation by deferred compliance); –– economy-wide emission-reduction commitments versus sector-wide emission-reduction commitments. Suggestion that developed countries be required to reduce emissions across all sectors, while developing countries may select which sectors to reduce emissions (differentiation by flexibility). This list shows that many different interpretations of CBDR are possible. States will often use one of ethical justification to argue for a policy interpretation of CBDR that most suits their interests. For example, BASIC nations have previously used the ethical argument of historical responsibility 31 Negotiating Text: Work of the Contact Group on Item 3, Decision 2/CP.17 [2]. 32 Ibid., at [4]. 33 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Report of the Ad Hoc Working Group on the Durban Platform for Enhanced Action on the Second Part of Its First Session (Geneva: UNFCCC, 2013), FCCC/ADP/2012/3 at [29], held in Doha from 27 November to 7 December 2013. 34 List of state party submissions available at: United Nations Framework Convention on Climate Change, Submissions from parties to the ADP (2013), http://unfccc.int/bodies/awg/items/7398.php (accessed 7 May 2015). 35 For a full overview of these submissions see Rowena Maguire, ‘The Role of Common but Differentiated Responsibility in the 2020 Climate Regime: Evolving a New Understanding of Differential Commitments’, Carbon and Climate Law Review 7, no. 4 (2013): 260.

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to push for an extension of the Kyoto Model, which only creates legally binding emissions for developed nations. Most of the differentiation methods listed above have been incorporated within the first draft text of the 2020 Climate Instrument.36 The ‘first draft’ text is very long and includes all possible suggestions on wording for the preamble, objective, mitigation, adaptation and finance articles. As such, the draft text does not favour one of the differentiation approaches but rather aims to get all possible interpretations listed in a working document for further refinement. It is worth exploring all of the possible CBDR interpretations in this draft document, as this will provide a historical perspective that will be useful in understanding how the 2020 instrument interpretation of CBDR was reached and will show the many possible options that were on the table. CBDR is a prominent principle within the draft agreement appearing in the preamble, objective, mitigation, adaptation and finance sections of the text. This chapter will focus on the CBDR suggestions from the objective and mitigation sections. Options for Differentiation within the Objective The first draft text contains three options on the wording for the ‘objective’ of the 2020 Climate Instrument. The key aspects of these options regarding differentiation will be summarized (wording below is not exact wording from draft text): • Option 1: All parties in accordance with CBDR to enhance mitigation ambition and cooperate with a view to limiting temperature increase to below 2°C or 1.5°C above preindustrial levels. Developed parties are to take the lead in undertaking ambitions emission reductions and providing finance, technology and capacity-building to support developing country parties. • Option 2: All parties to make individual efforts in accordance with CBDR in light of different national circumstances, consistent with limiting global average temperature to 2°C or 1.5°C above pre-industrial levels. • Option 3: Parties to make efforts to hold the increase in global average temperature below 2°C or 1.5°C above pre-industrial levels in the context of sustainable development. Developed country parties (included in annex X) to take the lead by undertaking ambitious emission reductions and parties (included in annex Y) to provide finance, technology and capacity-building support to developing countries. All three options include the specific temperature goal of limiting the global average temperature below 2°C or 1.5°C above pre-industrial levels, which seems to suggest that the PIJ of the 2020 Climate Regime will be temperature bound. Regarding differentiation: Option 1 adopts the Kyoto differential model of developed countries taking the lead and all parties making some contribution. Option 2 seems to be leaning towards self-differentiation that would involve bottom-up individual pledges from countries, rather than top-down imposed targets. While Option 3 is proposing the creation of three categories of membership within new instrument. The shortcoming of option one is that action is desperately needed from developed countries and rapidly industrializing countries such as the BASIC37 within the climate regime in order to keep warming below 2°C. While the 36 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Negotiating Text: Work of the Contact Group on Item 3. 37 For further on this point see Rowena Maguire and Xiaoyi Jiang, ‘Emerging Powerful Southern Voices: Role of Basic Nations in Shaping International Mitigation Commitments’, in International Law and the Global South, ed. Shawkat Alam et al. (Cambridge: Cambridge University Press, 2015).

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shortcoming of Option 2 is the scepticism that surrounds bottom-up pledges (self-differentiation) being adequate to stay within the 2°C or 1.5°C target.38 It is suggested that Option 3 would be the most consistent interpretation of differentiation in order to implement the PIJ as it will require action from a broader range of parties, while also recognizing that justice aspects of climate change by requiring more support for particular listed countries. Options for Differentiation in Mitigation Timing The first draft of the 2020 climate text contains five options regarding the wording and timing of mitigation commitments. Again these options will be summarized as they relate to differential treatment: • Option 1: Requires mitigation action that is consistent with emissions peaking (developed countries – parties included in annex X) in 2015, with an aim of zero net emissions by 2050, while noting that the time-frame for peaking may be longer in (developing countries, parties not included in annex X). Developed country obligations should be quantitative and time-bound while targets for developing countries peaking should be aspirational. • Option 2: Is similar to Option 1 but requires full de-carbonization by 2050 for developed countries and a sustainable development pathway for developing countries, consistent with a peaking of global GHG emissions as soon as possible. • Option 3: A global emission budget (informed by national estimates) to be divided among all parties according to the principles and provisions of the Convention, so as to limit global warming in this century to below 1.5°C according to the IPCC assessment. The distribution of the global emission budget should be undertaken in accordance with historical responsibilities, ecological footprint, capabilities and state of development. • Option 4: Stabilization of the concentration of GHGs in the atmosphere at or below 350 ppm of CO2 equivalent (CO2 eq) in the context of equitable access to sustainable development. • Option 5: A deviation from business as usual; that is, low-emission development strategies. Option 1 and 2 are reflective of the differentiation scheme from the Montreal Protocol, which involved differentiation by delayed compliance for developing countries. Both of these options require an emission status change by 2050. The benefit of this approach is that all parties hold legally binding mitigation obligations, but developing countries are just given more time to adjust. The shortcoming of this approach is that we may not have the time for developing countries to take longer to reach emission peaks. Option 3 is very much reflective of the BASIC nations negotiating position seeking differentiation based on a top-down approach using a global emission budget based on science to calculate mitigation obligations. This approach requires CBDR to be taken into account in setting the national targets (with particular reference to: historical responsibilities, ecological footprint, capabilities and state of development) and will require some form of action from all parties. It is worth noting that the ‘emission per capita’ language put forward by China and India in earlier submissions has been dropped from the 38 On this point see, United Nations Environment Program, ‘The Emissions Gap Report: Are the Copenhagen Accord Pledges Sufficient to Limit Global Warming to 2 C or 1.5 C?’ (UNEP, 2010), http://www. unep.org/publications/ebooks/emissionsgapreport/pdfs/The_EMISSIONS_GAP_REPORT.pdf (accessed 5 May 2015).

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negotiating text.39 It is suggested that the Option 3 approach to mitigating timing will produce the best results for ensuring that the PIJ is upheld. This is because Option 3 will require that sufficient pledges are made from all parties to limit warming. Options 4 and 5 do not specifically allude as to how differential treatment should occur, with Option 4 favouring a top-down approach based on science and Option 5 setting the lowest threshold for mitigation by only requiring change that is a deviation from business as usual. Options for Mitigation in the Form of Mitigation Targets The first draft text contains six options regarding the form of mitigation targets. There is great deal of repetition in the wording of these options and as such each proposal will not be individually summarized. There are generally two approaches regarding the form of mitigation targets: • Options 1, 3, 4 and 5 require all parties to progressively enhance the level of ambition of their mitigation commitments, so that aggregate commitments achieve the long-term global goal of the regime. Each commitment should be of a type, scope, scale and coverage no less ambitious than those previously undertaken under the Convention or its Kyoto Protocol with Options 4 and 5 specifically referring to CBDR. • Options 2 and 6 only require action from developed country parties to progressively enhance the level of ambition of their mitigation commitments, and each commitment is to be of a type, scope, scale and coverage no less ambitious than those previously undertaken under the Convention or its Kyoto Protocol. Option 6 differs here by requiring emission reductions of at least 25–40 per cent below 1990 levels by 2020. These options show that there is still quite significant disagreement over the issue of legally binding mitigation commitments for all parties. Four of the options favour a differentiation approach requiring action from all parties, while two of the options seem to prefer to the Kyoto interpretation of differentiation which did not create legally binding mitigation commitments for developing countries. One of the key issues in respect of legally binding commitments will be the definition of ‘developed’ and ‘developing’ countries, which will be spelt out in Annexures to the agreement. Possible Differentiation Model It is proposed that creating three categories of membership for the 2020 Climate Instrument would assist in ensuring that all parties held some form of legally binding obligation and will assist in further differentiating responsibilities to accord with the development status and GHG contributions. The model proposed below takes into account a number of differentiation methods discussed and would assist the global climate regime in complying with its PIJ. The proposed three categories are:

39 Rowena Maguire, ‘The Rise of the Basic Nations within the International Climate Regime: The Challenge of Ensuring Equitable Mitigation Obligations’, in Shifting Global Powers: Challenges and Opportunities for International Law, ed. Rowena Maguire, Bridget Lewis, and Charles Sampford (London: Routledge, 2013).

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• Developed/industrialized countries: these countries will hold the most stringent emissionreduction obligations, along with obligations with to assist with finance and technology transfer. This group would be required to implement obligations as required by science to limit warming to 1.5–2°C and to take action immediately. Emission reductions for this group should occur all across sectors (that is, transport, agriculture, manufacturing, mining and so on). • Rapidly industrializing countries: this will include the BASIC bloc and other rapidly developing parties which might include Mexico, Korea and Turkey who will hold legally binding mitigation obligations, which also require immediate action. This group may be given some leniency in selecting the sectors where emission reductions are made as long as their contribution still results in the global PIJ being implemented. • Developing countries: this category will include least developed countries and parties particularly vulnerable to climate change such as Small Island States. This group will hold legally binding mitigation commitments, however these states will be given more time to meet their obligations (deferred compliance). It is suggested that we can give these parties more time as their GHG emission contributions are not on the scale of the rapidly industrializing countries. Furthermore many of these countries have already made ‘Nationally Appropriate Mitigation Pledges’ (NAMAs) and many of these pledges are already as stringent as developed nations.40 It is of course very easy to propose a model synthesizing many of interpretations of the parties on differentiation and it is acknowledged that the much trickier task lies in seeking the consensus of the parties on an agreed definition of CBDR. While the above model neatly takes into account a number of differential measures, there is no need for all differential measures explored in this chapter to be reflected in the instrument. The more important task lies in finding values coherence among all major emitters on a policy interpretation of CBDR that can be considered to be ethical, while legally binding all major emitters to reductions as soon as possible.

40 For a full table on Copenhagen and Cancun NAMA’s see table in Maguire and Jiang, ‘Emerging Powerful Southern Voices: Role of Basic Nations in Shaping International Mitigation Commitments’.

Chapter 4

Stakeholder Perspectives on the Integrity of the Climate Regime Tim Cadman

Introduction The climate regime is one of the most complex intergovernmental endeavours to date, and given the number of institutions involved, it is not surprising that scholars of international relations have referred to it as a ‘regime complex’.1 Health, migration, water and food availability, governance arrangements beyond the unitary state (such as cities), have all been identified as comprising the regime complex.2 This poses a considerable challenge when it comes to determining comprehensiveintegrity, particularly identifying where the ‘regime’ begins and ends. From an integrity systems perspective, the idea of a ‘complex’ is also highly relevant, as it alludes to the multiple elements of the regime, and the determination of comprehensive-integrity. This chapter provides an analysis of the climate regime as a carbon integrity system, and as such the focus is on the United Nations Framework Convention on Climate Change (UNFCCC). When it comes to evaluating integrity, the ‘nested’ nature of the institutions, which sit inside the regime, will impact significantly on the determination of consistency-integrity (notably whether their own PIJs accord with or diverge from the regime’s PIJ). The scale of analysis (that is, regime, or nested institution and sub-institution), will also determine whether the element in question possesses context-integrity or coherence-integrity. In order to shed some light on the integrity of the UNFCCC, this chapter uses the perspectives of a wide range of stakeholders directly and indirectly involved, to evaluate the regime. The results are based key informant interviews, using the integrity systems framework outlined in Chapter 2. Some conclusions and recommendations are offered in the light of this evaluation. Institutions and Interests in the Climate Regime Institutional Elements As the discussion above implies, delineating even the UNFCCC is a challenging task. It is not possible to describe the entire regime here, so and a brief outline must suffice. The climate regime as a whole is hierarchical in its organizational structures and processes, meaning the main elements outlined in Figure 4.1 are all essentially nested institutions under UNFCCC. The Convention itself was a product of the Conference of Parties (COP), but is 1 Robert Keohane and David Victor, The Regime Complex for Climate Change (Cambridge, MA: The Harvard Project on International Climate Agreements, 2010): 25. 2 Timothy Cadman, ed. Climate Change and Global Policy Regimes: Towards Institutional Legitimacy (London: Palgrave Macmillan, 2013).

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2020 ‘ambition’.5 Another emergent body, the Warsaw International Mechanism for Loss and Damage (‘Loss and Damage mechanism’ – LDM) has become the negotiating forum to address the problem of climate-change induced infrastructure impacts. Developed countries, aware of their historical responsibilities, are proving unwilling to see the LDM evolve into a full-blown compensation mechanism. Financing mitigation and adaptation occupies much of the regime’s architecture. Public and private donors contribute funds. Adaptation action is directed by the Cancun Adaptation Framework, and implemented via national adaptation programs of action and national adaptation plans. Mitigation activities are addressed via the land-use, land-use change and forestry negotiations (LULUCF). LULUCF concerns terrestrial greenhouse gas (GHG)-emitting activities. National activities generate ‘assigned amount units’, which, if they lead to emissions reduction, can be converted into ‘emissions reduction units’ and enter the emissions trading market. This is particularly relevant for JI, which permits Annex 1 countries to trade with each other. Projects can be determined by the countries themselves, or via the Joint Implementation Supervisory Committee (JISC) itself. Although the EU emissions trading system can accept Clean Development Mechanism (CDM) projects as part of its member states’ emissions reduction activities there is still no formal international emissions trading scheme. It is possible that such a scheme may arise – if international emissions trading schemes emerge from the discussions around ‘new market-based mechanisms’.6 However, developed countries, with their interest in trading offsets, will need to address the concerns of some developing countries around the commodification of carbon. This is especially true for one of the most significant ‘post-Kyoto’ mechanisms, referred to as REDD+ (Reducing Emissions from Deforestation and Forest Degradation), which aims to provide financial incentives from developed to developing countries to reduce emission from deforestation and forest degradation.7 The list of institutions associated with the UNFCCC regime is considerable. In the broader research conducted for this project to date, over 170 elements have been identified (as of June 2014). Table 4.1 lists some of those, as selected by the interview subjects for this chapter. It is by no means comprehensive, and indeed, quite random, given whom agreed to be interviewed, and what they chose, but it nevertheless contains some of the main elements of significance. The ‘universe’ of stakeholders in the climate regime and the interests they represent is as complicated as the regime. The UNFCCC itself has various elements that attend the negotiations as ‘observers’, including specialized, service providing agencies under various thematic areas, such as the Global Environment Facility (GEF). From an integrity perspective, this makes them ‘nested’ institutions and sub-institutions. This is particularly the case for the GEF as it administers a series of thematically-elated climate funds (as well as other non-UNFCCC related funds), and is guided by its own Assembly and Council (sub-institutions). Similar arrangements exist for the new Green Climate Fund (GCF). These agencies do not play a role in negotiations as such, but they undoubtedly influence them. Individuals, as opposed to agencies, often wear multiple hats. Negotiators at COPs, for example, may be with a governmental delegation – a ‘Party’, with a pink identification badge – but also be an academic, for example, or sit on a number of different bodies. Intergovernmental organizations (IGOs, with a green tag) and non-governmental organizations (NGOs, with a yellow tag) may 5 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Report of the Ad Hoc Working Group on the Durban Platform for Enhanced Action on the Second Part of Its First Session (Geneva: UNFCCC, 2013). 6 UNFCCC, ‘New Market-Based Mechanism’ (2014), http://unfccc.int/cooperation_support/market_ and_non-market_mechanisms/items/7710.php (accessed 1 May 2015). 7 Cadman, Climate Change and Global Policy Regimes: Towards Institutional Legitimacy, 3–4.

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Table 4.1 Description of institutional elements commented on by interview subjects and their public institutional justification Regime component

Public Institutional Justification

Adaptation

Response strategy to climate change aimed at adapting to the effects already happening, and preparing for future impacts.

Ad Hoc Working Group on the Durban Platform for Enhanced Action

Subsidiary body established in December 2011. Mandate to develop a protocol, another legal instrument or an agreed outcome with legal force for adoption at COP 21, implemented from 2020.

Clean Development Mechanism (CDM)

Mechanism for developing countries to earn certified emission reduction credits (CERs) via emission-reduction projects. Credits used by industrialized countries to meet a part of their emission-reduction targets under the Kyoto Protocol. Now expired, but may continue in some form.

CDM Executive Board

Supervises the CDM guided by and accountable to the CMP. Point of contact for CDM Project Participants for the registration of projects and the issuance of CERs.

Climate Change Secretariat – CCS

Based in Bonn since 1996, with the assistance of the German Government, the UNFCCC Secretariat supports the associated with the Convention and Protocol guided by Parties.

Conference of the Parties Meeting of the Parties (CMP)

Supreme decision-making body of the Convention. All states that are Parties to the Convention take decisions regarding implementation of the Convention, including institutional and administrative arrangements.

Climate Technology Centre and Network (CTCN)

Facilitates the implementation of the Technology Mechanism with the Technology Executive Committee (TEC), under the COP. Aims to stimulate technology cooperation, development and transfer and assist developing countries.

Forest Carbon Partnership Facility (FCPF)

A fund under the auspices of the World Bank, it assists developing countries in their efforts to reduce emissions from deforestation and forest degradation and foster conservation, sustainable management of forests, and enhancement of forest carbon stocks through donor funds.

Global Environment Facility (GEF)

An operational entity of the financial mechanism of the Convention providing financial support to the activities and projects of developing country Parties.

Intergovernmental Panel on Climate Change (IPCC)

Scientific body that reviews and assesses scientific, technical and socioeconomic information relevant to climate change. Produces regular reports, and has an advisory role, but is not policy prescriptive.

IPCC Task Force on National Greenhouse Gas Inventories (TFI)

Established by the IPCC to oversee the National Greenhouse Gas Inventories Programme (IPCC–NGGIP).

Joint Implementation (JI)

Countries with commitments under the Kyoto Protocol transfer and/ or acquire emission reduction units (ERUs) to meet emission reduction target.

Land Use, Land Use Change and Forestry (LULUCF)

Activities in the LULUCF sectors can mitigate or increase climate change. Mitigation activities under the LULUCF aim to remove greenhouse gases (GHGs) from the atmosphere or accumulate of carbon stocks.

Stakeholder Perspectives on the Integrity of the Climate Regime Regime component

47

Public Institutional Justification

National delegation

Parties to the Convention bring delegations to the climate conferences consisting of government ministry representatives, and may include other non-state delegates (for example, business, environmental NGOs), depending on national government preferences.

Reducing emissions from deforestation and forest degradation (REDD+)

Introduced into the COP in 2005. Aims to mitigate contribution of emissions from deforestation in developing countries to global GHG emissions.

United Nations Development Programme (UNDP)

Founded in 1966 to help build national resilience, and encourage and maintain growth that improves the quality of life for all.

United Nations Environment Programme (UNEP)

UNEP, established in 1972, is identified as ‘voice for the environment’ within the UN system.

United Nations Framework Convention on Climate Change (UNFCCC)

The UNFCCC entered into force on 21 March 1994 and now has near-universal membership. The aim of the Convention is ‘preventing “dangerous” human interference with the climate system’.

UN-REDD

Support mechanism for offering incentives for developing countries to reduce emissions from forested lands and invest in low-carbon paths to sustainable development.

Source: UNFCCC.int.

attend as observers, but not attend ‘closed’ negotiating sessions of the COP and its subsidiary bodies (for example text negotiations). These observers are not to be confused with Observer States (such as Palestine), which may attend. The IGOs, as their name implies, are those bodies established by governments to provide specific services, such as the Centre for International tropical Forestry Research (CIFOR), the Organisation for Economic Cooperation and Development (OECD), and the International Energy Agency (IEA). There are almost 100 of these registered as observers. The NGO constellation is much larger – almost 1,600 at last count – and extremely diverse, and a range of constituency groupings and acronyms have emerged: business and industry (BINGOs); environment (ENGOs); farming and agriculture; local governments and municipal organizations; research and academic organizations (RINGOs); youth (YOUNGOs); and ‘women and gender’.8 Technically speaking, these ‘stakeholders’ are ‘outside’ the Convention, as they have no formal decision-making powers, not being member states, and attend as observers. However, there is a high degree of osmosis within the regime, with observers regularly crossing the ‘Party’ barrier and vice-versa. It is perhaps better to characterise these interests as being either ‘for’ the regime, or ‘against’. ENGO Climate Action Network (CAN), for example, attends the climate talks, and regularly provides written interventions in such forums as the ADP negotiations.9 An example of an ENGO that prefers to stay outside is Climate Justice Now! (CJN), which organized a large street march at COP 20, Lima, whose supporters were of the view that such mass mobilization was ‘more important than what you can do lobbying’.10 8 UNFCCC, ‘Parties to the Convention and Observer States’ (2014), http://unfccc.int/parties_and_ observers/parties/items/2352.php (accessed 3 March 2015). 9 Climate Action Network (CAN), ‘CAN, Written Intervention to ADP 2–5’ (CAN, nd), 2–5. 10 Andrea Germanos, ‘Marching in Defense of Mother Earth, Thousands in Lima Demand Climate Justice Now!’, Common Dreams, 10 December 2014.

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In terms of obligations to reduce GHG emissions under the protocol, parties are broken down into ‘Annex I’ and ‘Non-annex I’ countries. Annex I countries consist of high-emitting, industrialized countries. They include member countries of the OECD in 1992, as well as countries in transition from a planned, to a market economy (economy in transition, or EIT – the Russian Federation, the Baltic states, and several of the eastern and central European states). A sub-set of these, the ‘Annex II’ countries, comprise Annex I parties, but not the EITs. These are obliged to assist developing countries and the EIT to reduce emissions through the provision of environmentally sound technologies and funds (via the Convention’s Financial Mechanism) to assist in the reduction of emissions and adaptation to climate change. The Non-annex I parties consist largely of developing countries considered to be most vulnerable to climate change as a result of their location, either in low-lying regions that could be inundated, or who could be subjected to increased drought and desertification. They also comprise countries that produce fossil fuels or those who engage in related commerce, whose economies could be adversely affected by climate change-related response measures. Consequently, there is an emphasis in the Convention on providing support from investment, insurance and technology transfer. The 49 ‘least developed countries’ are part of this group, and are to be given special consideration regarding funding and technology transfer.11 An interesting tension to emerge in formal country designations affects those developing countries, which might now be considered developed. This includes India and China (see also below). Both have benefitted considerably from investment from the Annex II countries, via the CDM, with over 70 per cent of total CDM project investments.12 There is a view that China and India should no longer be considered developing countries, and instead shoulder their burden of responsibilities when it comes to reducing global carbon emissions.13 The point should also be made that the more informal groupings rather than the official, UN ‘regions’ (African states, Asian states, eastern European states, Latin American and the Caribbean states, and the western European and other states) had greater influence on the position and views of the interview subjects. The five regional groups are not usually used to represent the interests of parties. This is done via several other groupings, which are far more important for climate negotiations, such as the ‘Group of 77 (G77) and China’.14 Within the G77 there are further groupings, the most notable of which is the ‘Like Minded Developing Countries’, which represents those nations that consider themselves most vulnerable to climate change. This group has itself seen some instability in the wake of COP 20, with the Philippines withdrawing, partly on account of the inflexibility of China and the fossil fuel countries in responding to their needs.15 A similar coalition exists for the Small Island Developing States (SIDs) who are highly vulnerable to climate change. A further collection, of Annex and Non-Annex countries, is the Environment Integrity Group formed in 2000, which consists of Mexico, Liechtenstein, Monaco, the Republic of Korea and Switzerland. Another grouping is the so-called ‘Umbrella Group’ (UG), which is an 11 UNFCCC, ‘Parties and Obervers’ (2015), http://unfccc.int/parties_and_observers/items/2704.php (accessed 3 March 2015). 12 Tek Maraseni, ‘Evaluating the Clean Development Mechanism’, in Climate Change and Global Policy Regimes: Towards Institutional Legitimacy, ed. Timothy Cadman (London: Palgrave Macmillan, 2013): 98. 13 Coral Davenport, ‘Deal on Carbon Emissions by Obama and Xi Jinping Raises Hopes for Upcoming Paris Climate Talks’, The New York Times, 14 November 2014. 14 UNFCCC, ‘Party Groupings’ (2015), https://unfccc.int/parties_and)_observers/parties/negotiating groups/items/2714.php (accessed 25 February 2015). 15 Walden Bello, ‘Is the Philippines Squandering Its Moral Authority on Climate Change? The Dilemmas Faced by Climate-Vulnerable Developing Countries’, Counterpunch, 20 January 2015.

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informal collection of developed countries outside the EU, and which arose as a consequence of Kyoto Protocol. The UG comprises countries including Australia, Canada, Japan, New Zealand, Kazakhstan, Norway, the Russian Federation, Ukraine and the US.16 Brazil, Russia, India, China and South Africa also periodically ally themselves as the BASIC countries.17 Research Method and Results The primary objective of the research was to engage directly with participants in the climate regime to determine their views on the values and integrity of the mechanisms underpinning the climate regime. Participants were initially contacted by email, and could choose a face-to-face interview, or respond via online technologies including Skype. The questions are in Table 4.2 below. Table 4.2 List of interview questions Number

Question

1

a) What do you see as the role of your own/the organization? b) How well do you think it fulfils this role? c) What values do personnel within your/the organization share that enhance their performance and the performance of the organization?

2

What does your/the organization need from other organizations in order to be able to fulfil your role?

3

What does your/the organization do for other organizations, which allows them to fulfil their role?

4

Does your/the organization monitor (or otherwise check on) the performance or integrity of other organizations (either in an official or unofficial manner)?

5

Do any other organizations block your/the organization’s attempts to fulfil your/its role?

6

a) What organizations do you feel you are/the organization is in competition with? Do you think this competition is b) Healthy and drives better outcomes? Or c) Do you feel it is unnecessary or wasteful?

7

a) Are there any networks that you feel might be open to exploitation by unscrupulous actors? b) And what could be done avoid this?

8

a) Are there integrity challenges: your own/the organization has needed to respond to, or b) Make changes in order to avoid in future?

Notes: Questions were changed as to whether the respondent was an ‘insider’ (‘your organization’), or commenting as an ‘outsider’ (‘the organization’).

16 UNFCCC, ‘Party Groupings’. 17 ‘Statement by South Africa on Behalf of Basic to the Opening Session of ADP 2–7’ (2014), http:// unfccc.int/files/bodies/awg/application/pdf/adp2–7opening_statement_by_basic_02dec2014.pdf (accessed 19 December 2014).

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Ethical Values and the Integrity of the Climate Change Regime

Thirty-six interviewees provided responses to the questions of Table 4.2, commenting on 37 institutional components. Many of the interview subjects were directly involved with the elements on which they commented, and had several years’ experience, either as Party negotiators, or observers, or both. A number of climate-related academics were also interviewed; some of these also had direct experience of the negotiations, or specific Convention-related activities and implementing agencies, or both. A broad range of developed and developing countries were represented – both Annex and Non-annex countries – including economies in transition, from a diversity of formal and informal country groupings, as described above. For a list of interviewees by country, see Table 4.3 below. Table 4.3 List of interview subjects by country Country Armenia Australia Austria Brazil Cambodia Cameroon Czech Republic Finland Germany Italy Japan Luxembourg Mexico N/A Netherlands New Zealand Nigeria Peru Poland Slovakia Slovenia Switzerland Syria UK US Zambia Total

Number 1 1 1 1 1 1 1* 1 2 1 1 1 2 3** 3 2 1 1 2 1*** 1 2 1 2 1 1 36

Notes: * three interviewees in one interview, but only one response relevant; ** refers to UNFCCC-mandated agency or organization (UNO); *** two interviewees in one interview, but interviewees spoke interchangeably on the same topic.

It should be noted, however, that interviewees also fell into three distinct further categories, not just on the basis of whether they were a Party, or observer, or academic. See Table 4.4.

Stakeholder Perspectives on the Integrity of the Climate Regime

Table 4.4

51

Interview subjects by grouping, category and interview location

Regime Element and/or sub-institution Adaptation ADP ADP CCS CDM CDM CDM EB CMP CTCN** CTCN** GEF GEF IPCC IPCC TFB – NGGI JI LULUCF National delegation National delegation National delegation National delegation National delegation National environment agency National ministry of foreign affairs REDD+ REDD+ REDD+ – FCPF* REDD+ – in Mexico REDD+ – in Mexico REDD+ – UN-REDD* UNDP – disaster prevention in São Paulo State UNEP UNEP UNEP/UNDP in the Mekong Basin UNFCCC UNFCCC UNFCCC UNFCCC

Grouping Annex I, II Non-annex I Annex I, II UNO Non-annex I Annex I, II Annex I, I Annex I, EIT Annex I, II Annex I, II Annex I, II UNO Annex I, II Non-annex I Annex I, EIT Annex I Annex I EIT Annex I, EIT Annex I, EIT Annex I, II Annex I, II Annex I, II Non-annex I Annex I, II Non-annex I Annex I, II Non-annex I Non-annex I Annex I, II Non-annex I Annex I, II Non-annex I Non-annex I Annex I, II Annex I, II Annex I, II UNO

Category Govt. Party Observer UNO Party Observer Party Party Observer Party Party Observer Party Party Party Observer Party Party Party Party Party Party Party Academic Party Observer Academic Observer Observer Academic Academic Academic Academic Observer Observer Observer Observer

Location Online COP 20 COP 20 SBSTA 40 SBSTA 40 COP 20 COP 20 SBSTA 40 COP 20 COP 20 SBSTA 40 SBSTA 40 Australia Online SBSTA 40 COP 20 SBSTA 40 SBSTA 40 SBSTA 40 SBSTA 40 SBSTA 40 SBSTA 40 SBSTA 40 Online COP 20 COP 20 Online COP 20 COP 20 Online Online Online Online COP 20 COP 20 COP 20 COP 20

Notes: * two regime elements commented on by one individual; ** members of the CTCN.

The first group of subjects were interviewed face-to-face at SBSTA in Bonn, June 2014, and consisted largely of ‘insiders’ – that is, they were regime participants in some form or other, either as negotiators, or working in a specific institutional component. This cohort was recruited by searching UNFCCC documentation in which they were identified as chairs and co-chairs, or representatives of regime-related negotiations, committees, boards, and so on.

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Ethical Values and the Integrity of the Climate Change Regime

The second cohort were interviewed at COP 20 in Lima, December 2014, and consisted largely of ‘outsiders’ – that is, they participated in the regime to a more limited extent in the sense that they were largely from NGOs, and IGOs, and listed in UNFCCC documentation as such. Some of these individuals also played a role in negotiations, indicating just how blurred the lines are between ‘insiders’ and ‘outsiders’ in the regime, but it is a fair characterization of this group to say that they were largely non-voting participants. Most interviewees could be easily grouped and categorized. In the case of the interviewees, who commented on the GEF and UNFCCC, their organizations were global in scope, and not identifiable by country. In the case of the Secretariat, it is a facilitating agency, and neither a Party, nor an observer. All academics were interviewed online, with clear country designations. Interviewees commented on 14 specific regime elements (adaptation, ADP, CDM, CMP, CTCN, GEF, IPCC, JI, LULUCF, nationallevel components, REDD+, UNDP, UNEP and UNFCCC generally). Interviewees selected a number of sub-institutions within specific regime elements on which to comment (CDM – Executive Board; IPCC – Task Force Bureau, National Greenhouse Gas Inventories; national level – national delegations to the negotiations, one national environment agency, and one national ministry of foreign affairs; REDD+ across several countries, and in Mexico, as well as UN-REDD and FCPF; UNDP – adaptation in São Paulo state; UNDP/UNEP in the Mekong Basin; and UNFCC – Climate Change Secretariat). Analysis of the interviewees’ perceptions regarding the integrity of the regime components was achieved by cross-matching their responses to the questions of Table 4.2, with the integrity concepts outlined in the Second Chapter. The primary objective here was to gauge perceptions of the presence or absence of challenges to the integrity of the regime component under examination. Given that it has been established above that this investigation takes the UNFCCC as the ‘carbon integrity system’, all other institutions (such as the CDM) become ‘nested institutions’, and those elements within them, ‘sub-institutions’ (such as the CDM Executive Board). Consequently, the scope of analysis (from larger to smaller) determines the integrity concept. Table 4.5 links the questions contained in Table 4.2 to the integrity concepts outlined in Chapter 2, notably the shift between the regime’s integrity concepts, and the integrity concepts of the nested institutions, and sub-institutions, relative to the overall regime. Data comes from different institutions and sub-institutions – meaning that one institution’s external context-issue comprises another institution’s internal coherence and context concern. Even so, results regarding the proportion of institutions that possessed a Public Institutional Justification (PIJ), or had experienced integrity challenges illustrate significant features of the regime. Some aggregates of the data (notably the ‘nested’ elements under the CDM, IPCC, REDD+) also provide some interesting insights into the climate regime (UNFCCC) as an integrity system. Several caveats should be made. The assessment indicates perceptions of integrity at the level of the individual, regarding the institutional components selected, and caution should be exercised in viewing the results as representative. This is especially true regarding ‘outsiders’ commenting on a given institutional component (v. ‘insiders’); here, respondents were either commenting on the institution under scrutiny, or their own institution and the issue of ‘institutional bias’ cannot be discounted. Alternatively, an indication that there was no challenge to integrity did not mean there was no such threat, but only that the individual did not perceive there to be one, or did not reveal that there was one. In addition, respondents did not always answer directly, requiring some interpretation. Assessment was qualitative, and determined by the researcher.

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Table 4.5 List of questions and their relationship to integrity concepts relative to overall regime Number 1

2 3 4 5 6

7

8

Question

Integrity Concept Relative to Overall Regime Regime PIJ (regime’s PIJ) Consistency of regime Coherence of regime Context of regime

a) Role b) Role fulfilment c) Shared values Organizational needs from other organizations Organizational needs Context of regime to other organizations Monitoring role (or Context of regime otherwise check) Blocks Coherence and context of regime a) Competition Context of regime

Nested Institution Coherence of regime Coherence of regime Coherence of regime Coherence and context of regime Coherence of regime

Sub-institution Coherence of regime Coherence of regime Coherence of regime Coherence of regime

Coherence of regime

Coherence of regime

Coherence and context of regime Coherence and context of regime b) Healthy Context of regime Coherence and context of regime c) Wasteful Context of regime Coherence and context of regime a) Unscrupulous Coherence and context Coherence and context actors of regime of regime b) Recommendations Not an integrity – concept a) Challenges needed Contingency Contingency to respond to coherence, or context coherence, or context of regime of regime b) Make changes Coherence of regime Coherence of regime

Coherence of regime

Coherence and context of regime Coherence and context of regime Coherence and context of regime Coherence and context of regime Coherence and context of regime – Contingency coherence, or context of regime Coherence of regime

The results for each of regime elements are provided for comparative purposes, but should be viewed anecdotally – especially given the small numbers of interviews, which are further broken down into ‘nested’ regime elements, or sub-institutions of these. Finally, it should also be noted that where only one or two interviewees commented on a given regime element, the results may represent ‘outlier’ assessments, with no means of calibration. Groups of three or more (in the case of REDD+ and UNFCCC, for example) could be more useful for analytical purposes. See Table 4.6 below. Looking at the overall results first, it was alarming to note the high number of integrity challenges identified by interviewees – 254 out of a possible total of 481. Again, however, it must be stressed that this kind of qualitative assessment cannot be validated statistically. Nevertheless, the results showed a ‘fail’ for regime, and its nested- and sub-institutions overall – albeit somewhat underwhelming (a little less than 50 per cent). This result should sound a note of cautious pessimism when evaluating the perceptions of integrity of the regime amongst these key informants. However, it can also be seen that in the eyes of interviewees, few regime elements gave a stellar performance. UNFCCC itself did not fare especially well. One interviewee identified nine integrity challenges, and a second nine. Although one mitigating result of six was also received, UNFCCC received an overall ‘fail’.

Type

Nested Nested Nested Nested Nested Nested Sub-institution Nested Nested Nested Nested Nested Nested Sub-institution Nested Nested Nested Nested Nested Nested Nested Sub-institution Sub-institution Nested Nested Sub-institution Sub-institution Sub-institution

Regime Element

Adaptation ADP ADP CCS CDM CDM CDM EB CMP CTCN CTCN GEF GEF IPCC IPCC TFB – NGGI JI LULUCF National delegation National delegation National delegation National delegation National delegation National environment agency National ministry of foreign affairs REDD+ REDD+ REDD+ – FCPF REDD+ – in Mexico REDD+ – in Mexico

Govt. Party Observer UNO Party Observer Party Party Observer Party Party Observer Party Party Party Observer Party Party Party Party Party Party Party Academic Party Observer Academic Observer

Category 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

1 1 1 0 0 1 1 1 0 1 1 1 0 0 0 1 1 0 0 0 0 1 0 1 1 0 1 1

Q1a) b) 0 0 0 0 0 0 0 0 0 0 1 1 0 0 0 1 1 0 0 0 0 0 0 0 0 0 1 1

c) 1 0 0 0 1 1 0 1 0 1 0 1 0 0 0 1 0 0 0 1 0 1 0 0 1 0 1 1

Q2 0 0 0 1 0 0 0 0 0 1 0 0 0 0 1 1 0 0 0 0 0 0 0 0 0 0 0 1

Q3 0 1 1 1 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 1 N/A 0 0 1 0 1 1 1

Q4 1 1 1 1 1 1 1 1 0 1 1 1 1 0 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1 0 1 1 0 1 1 1 0 1 1 0 0 0 1 1 1 1 1 1 1 1 1 1 1 1 1 1

0 1 1 1 0 0 0 0 0 0 0 1 1 0 0 1 1 0 0 0 1 1 1 0 1 0 1 1

Q5 Q6a) b) 1 0 1 0 0 0 1 1 1 0 1 0 1 1 1 1 1 1 1 0 1 1 0 0 1 1 1 1

1 1 0 0 1 1 1 1 1 1 0 0 1 0 1 0 0 1 1 1 1 1 1 1 0 1 1 1

0 1 1 1 1 1 1 1 0 0 1 0 1 1 0 1 1 0 1 1 0 1 0 1 1 1 1 1

0 1 1 1 1 1 1 1 0 0 1 0 0 1 0 1 1 0 0 1 0 1 0 1 1 1 1 1

c) Q7a) Q8a) b)

Integrity questions and concepts

No. of challenges (max. 13) 6 7 8 8 5 7 7 8 2 7 7 5 5 3 5 10 8 4 5 7 5 9 4 7 8 7 11 12

Table 4.6 Summary of results of interviewee perspectives on the integrity of UNFCCC and its institutional sub-components

Type

Category

Notes: 0 – No challenge to integrity; 1 – Challenge to integrity.

0 0 1 0 1 1 1 1 1 12

1 0 1 1 1 1 1 22

c)

0 0

Q1a) b)

REDD+ – UN-REDD Sub-institution Observer 0 UNDP – disaster prevention in São Sub-institution Academic 0 Paulo State UNEP Nested Academic 1 UNEP Nested Academic 0 UNEP/UNDP in the Mekong Basin Sub-institution Academic 0 UNFCCC Regime Observer 0 UNFCCC Regime Observer 0 UNFCCC Regime Observer 0 UNFCCC Regime Observer 0 Total number of integrity challenges per question (out of 37 2 elements) Total number of integrity challenges for all elements (out of 481)

Regime Element

1 0 1 0 0 0 1 15

0 0

Q2

1 0 0 0 0 0 0 6

0 0

Q3

1 0 1 0 0 1 0 13

1 0

Q4

1 0 1 1 1 1 1 34

1 1 1 0 1 0 1 1 1 29

1 1 0 0 1 0 1 1 0 16

0 0

Q5 Q6a) b)

1 0 1 0 0 1 1 25

1 1 1 1 1 1 1 1 1 33

1 0

1 1

1 1 1 0 N/A N/A 1 1 1 1 1 1 1 1 27 22

0 1

c) Q7a) Q8a) b)

Integrity questions and concepts

254

12 2 9 6 8 10 9

No. of challenges (max. 13) 6 5

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REDD+, which had a range of nested institutions and sub-institutions to compare, provided some interesting results, and with ‘paired’ scores, some corroboration of the perspectives of interviewees. In the case of REDD+ as the nested institution, the results were similar – a close ‘fail’ (seven out of 13 integrity challenges) and a low ‘fail’ (eight out of 13). As sub-institutions UN-REDD and FCPF shared close results again – but this time with a ‘pass’ for UN-REDD (six challenges) cf. seven for FCPF (a close ‘fail’). The results at the national level for REDD+ in Mexico are more marked – both interviewees were very critical, identifying 11 and 12 integrity challenges apiece. Here, there is some external corroboration, as REDD+ has been vociferously opposed in some Mexican states, notably Chiapas.18 As a single element, UNEP performed both the weakest and best (note the comments regarding ‘outlier’ effects above). A similar situation was to be observed with CTCN, with the equal highest score, but also a low ‘pass’ from the second interviewee. Other elements performed poorly the notable ‘fails’ being LULUCF, UNDP/UNEP in the Mekong Basin, two national delegations, and a national environment agency, the GEF (one ‘fail’, to be contrasted with another ‘credit’), CTCN (but also one ‘excellent’), the CDM (but also one ‘credit’), and the CMP, the Secretariat, and ADP – in the case of ADP, both interviewees. Given the importance of these last three elements to the regime, these results should be a cause for concern – especially the ADP, as this is the main negotiating platform in the lead up to COP 21 in Paris. Some of the unequivocal ‘passes’ should be noted. These include three national delegations, and a ministry for foreign affairs, ‘adaptation’ and UNDP – disaster prevention in São Paulo State. It is somewhat reassuring to note the performance of the two Kyoto ‘flexible mechanisms’ – JI, and the CDM (although the CDM did also merit one fail, as did the CDM EB). The IPCC, and its sub-institution, the IPCC TFB (Task Force Bureau) – NGGI (responsible for national GHG inventories) were the only related nested institution and related sub-institution to both pass, and pass well, which perhaps says something about this regime component. It might be argued that in the case of the IPCC, both interviewees were ‘insiders’, but overall, the ‘insider–outsider divide’ did not appear to play a role in biasing results overall, so it may be possible to give IPCC the benefit of the doubt, and note its result as ‘commendable’. Turning to the specific integrity concepts themselves, only two of the 37 elements did not have clear articulation of their PIJ (Q1a). It is interesting to note that one of these was the CCS itself, perhaps indicating its constantly evolving nature. In the words of the interviewee: ‘the perception of our role, of the organization, or more broadly of the intergovernmental process, has significantly changed over the last few years’. Less reassuringly, a majority did not think their institution performed its own role well (Q1b). As one observer commenting on UNFCCC put it: The Kyoto Protocol certainly has not been effective. We’re still, you know, we’re twenty years into the negotiation and we don’t have a comprehensive deal. We’ve had very little progress and really, the only progress we’ve seen [is] in developing countries. But with respect to fossil fuel emissions, you know, there’s been no effect on that trajectory.

There were more positive results when it came to the identification of what values underpinned the regime’s institutions (Q1c); here a large majority gave a positive response. A Party interviewee, 18 Chris Lang, ‘We Reject Redd+ in All Its Versions – Letter from Chiapas, Mexico Opposing Redd in California’s Global Warming Solutions Act (Ab 32)’, The REDD Monitor (2013), http://www.redd-monitor. org/2013/04/30/we-reject-redd-in-all-its-versions-letter-from-chiapas-mexico-opposing-redd-in-californiasglobal-warming-solutions-act-ab-32/ (accessed 5 March 2015).

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commenting on the IPCC, believed that ‘contributing to – at least – the potential for better decisions [and having] a shared value of being in a service role’ were central to its function, and noted that the institution had its own motto – ‘be policy relevant, but not policy prescriptive’. Others were less complimentary about the institutions they commented upon. One Party interviewee responded that the ‘level of trust’ within their own national delegation was ‘completely lacking’, and this was ‘too bad, really’. A majority of interviewees clearly and/or positively elucidated what their organizations needed from others, in order to fulfil their role (Q2). The Party representative commenting on the JI emphasized that they had received ‘support from the Secretariat and the Sustainable Development Mechanisms Program’, adding that ‘the team has great expertise’. In the case of ADP, and its emerging agenda for COP 21 in Paris, one Party interviewee stressed the importance of the negotiations staying within the ‘original crafting, the design and the intentions of the Convention’. In relation to Adaptation as a broader thematic area in the negotiations, the governmental representative provided a relatively detailed critique of what it needed, but had not received, from other regime elements: ‘United Nations Organizations’ needed to be ‘less afraid and competitive, more efficient and proactive’; while both business interests and politicians needed a genuine ‘concern for sustainability’. Interviewees were far clearer about what they did for other organizations, to allow them to fulfil their role (Q3), with only a few being unable to comment, or providing negative comments. Here the issues – in the case of some regime elements (such as CTCN) – were in their relative infancy, and the fact that that certain projects had yet to be fully implemented (for example, REDD+, which is still in an early phase). In the case of LULUCF, however, the observer interviewee commented that ‘most people’ simply did not want to change – ‘the farmers want to carry on farming like they are and the foresters want to keep cutting stuff down’. With regard to having a monitoring or checking role (Q4), a good proportion of the interviewees commented favourably on the monitoring and checking activities of their institutions, or noted the presence of such mechanisms. Some commented negatively, and/or argued that their regime element did not have any such activities. In the case of ADP an absence of monitoring could relate more to its nature as a negotiating process rather than a mechanism; for the CDM it is reassuring to see the degree of unanimity between parties and observers that its mechanisms were robust. One Party considered it to have ‘the most precisely checked and validated process’ in the regime. In relation to REDD+, it is significant of that five of the six interviewees did not view its monitoring, reporting and verification (MRV) mechanisms to be especially robust – at various sub-institutional levels. Here, one Party was in conflict with the observer, who commented on both FCPF and UNREDD. In the case of FCPF, the Party was positive about the World Bank’s own internal monitoring and reporting processes. The observer agreed, that at the Bank level there was ‘a process of due diligence before they will release any funding’, but maintained that for FCPF it was not possible to know ‘what that entails, because it’s not set out at the fund level’ [author’s emphasis]. Almost every interviewee (34 out of 37) identified ‘blockers’ in the system (Q5). Here the list was long, ranging from developed to developing countries, to national parliaments, politicians and political parties, as well as business – and environmental non-governmental organizations, industry sectors (including forestry and energy), think tanks and climate sceptics. Neither the parties nor observers nor academics were discriminating in their criticisms – similar views were to be found across types. Several pointed the finger at the US and its opposition to making the Convention legally binding. Interestingly, one Party also named ‘countries that in 1992 were developing countries [and] are no longer so – they need to take up their fair share’ – presumably referring to Brazil, Russia, India and China (the BRICs).

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An overwhelming number of interviewees identified the existence competitors within the regime, and outside it (Q6a), with a minority seeing this competition as healthy (Q6b), but the majority agreeing that it was unnecessary and wasteful (Q6c). Some interviewees identified some of the ‘blockers’ of Q5, such as different individual countries, or noted developed/developing country rivalries, but many more looked at competing elements within the system more thematically. Some, for example, noted a competition between donor countries, and recipient countries, and between different funds – one observer paying attention to the competition between ‘multilateral funds’ and between those funds, and ‘bilateral channels for climate finance’. Others named individual funds as being in competition, including the GCF v. the World Bank’s Climate Investment Funds (CIFs). One Party named the newly developed CTCN as being in competition with the GEF, which had historically funded technology transfer activities. Others pointed to competition between emissions reduction activities, notably between the CDM and JI, and between these certified initiatives, and voluntary carbon standards (VCS), as well as with the (bi-lateral) Joint Crediting Mechanism (JCM) of Japan. One UNFCC-mandated agency or organization (UNO) commented on the competition between the climate Convention and other conventions (such as the Convention on Biological Diversity [CBD], and initiatives launched by some governments, particularly the Major Economies Forum and the Clean Air Coalition. They noted that the United Nations was ‘quite thin skinned’ about ‘alternative multilateral processes’ and more broadly, the ‘concept of initiatives outside the Convention’. An even more overwhelming majority of interviewees acknowledged the existence of networks of unscrupulous actors within, or affecting, the climate regime, and an even higher number identified exploitation by (Q7a). Many made the obvious point that such networks, and their exploitation, were inevitable in any human system. Several parties commented on the existence of organized crime and ‘carbon cowboys’, with one observer explaining that this had led to the generation of ‘false tax credits’. Several interviewees were critical of the UN system and the waste of money, one Party claiming it was all ‘spent on hotels, tickets, renting meeting rooms, [and] allowance[s]’ and that the climate regime was known for ‘creating new bodies, for new people to be employed’. Others referred back to examples of ‘bad actors’ from Q5 and Q6, including business, with one Party referring specifically to ‘FENCO [the Fossil Energy Coalition], the coal industry and … the power industry’. One academic was particularly scathing of the role of NGOs in disrupting projects they did not agree with, referring to them as being ‘like the Sicilian gangs’. Another academic referred to the problem of corruption across Africa. One observer was also concerned about the role of climate funds, notably the lack of transparency around the activities of funds’ boards. Others were concerned about the role of conventional investors, investment funds and tax policies, which they saw as being detrimental to sustainability. One academic noted how ‘businesses have infiltrated scientific mechanisms, to move away from the neutrality of science’, while another observer believed that the business NGOs (BINGOs) in the climate negotiations had been ‘captured’ by the ‘energy sector’ and were ‘not representative of business and industry as a whole’. A large majority of interviewees identified that there had been integrity challenges to the institutional elements on which they chose to comment and indicated that it had been necessary to develop responses (Q8a). A similar number identified measures that needed to be taken for the future (Q8b). These are high numbers, and not especially positive for the regime as a whole. There was some reluctance to name these amongst the parties, but a degree of consensus was apparent that rules regarding ‘additionality’ in the CDM had been problematic at the outset of the mechanism (this relates to the necessity for CDM projects to demonstrate that their activities were providing increased emissions reductions, that would otherwise not have occurred). One observer, and one

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Party expressed concerns about the veracity of emissions reporting at the national level. Two Party representatives also questioned the effectiveness of the way in which national and supra-national (that is, EU) delegations were organized. Every interviewee, Party, observer or academic, noted the integrity challenges confronting REDD+, and the necessity for response measures. These included the need for land tenure reform, free prior and informed consent (FPIC), recognition of the rights of Indigenous peoples and access to information and grievance mechanisms. As one observer put it: ‘they might say, yes we are doing it. But at the end if you go a little deeper you realise, not in the way that many people or many governments are saying’. In relation to UNEP, one academic, who had previously been responsible for the review of its programmes, noted that ‘there was corruption’ and programmes had not been ‘properly implemented’, but that this was a ‘national level’ problem. In attempting to redress the issues, one UNO representative observed that the problem ‘may be less about things that people do, than about perceptions, to make sure that there is absolute confidence in the system’. Several interviewees acknowledged that institutions as diverse as the IPCC, Secretariat and the CDM had made necessary changes, while two interviewees, speaking on REDD+, called for better ‘governance design’ and ‘governance mechanisms’. Conclusions On the basis of this investigation, no regime elements could be said to have achieved ‘comprehensiveintegrity’, but it should also that the UNFCCC itself and its various sub-components performed adequately, but not commendably.19 At individual level, if a simple pass/fail threshold of no more than seven integrity challenges out of 15 were applied to each element investigated, far less than half (14) would ‘pass’. In terms of having a clear PIJ, the vast majority understood their organization’s role, but the fact that the majority of interviewees did not think the various elements fulfilled their role is not a positive sign for the regime’s future performance. Low integrity levels regarding ‘blockers’ in the system, the presence of unscrupulous actor networks, national-level challenges and the existence of integrity issues overall, indicate that more work is required in all these areas. In terms of how the climate regime might respond to these findings, the question is moot. Stronger monitoring and verification systems are required, both in terms of ensuring compliance with the regime’s policy instruments, and sanctioning non-compliance. Despite the fact that parties ‘sign up’ to a protocol, infringements largely seem to go unpunished. The ‘flexible mechanisms’ of the Kyoto Protocol are to be congratulated for their registration and verification procedures. But stronger monitoring is required for markets mechanisms, and policy initiatives generally, to keep track of unscrupulous actor networks. Given that lack of compliance is an all-too common criticism levelled against the regime, the prospects for rigorous implementation of emissions reductions may yet be a long-way off.

19 With the possible exception of IPCC – but with the IPCC, as with all nested institutions, it would be necessary to evaluate all sub-institutions. It should also be borne in mind that this evaluation investigated only a fraction of the elements that comprise the climate regime as a whole.

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Chapter 5

How to Assure that Nations Consider Ethics and Justice in Climate Change Policy Formulation Donald A. Brown

Introduction The chapter will reflect on the practical significance for law and policy of a few of the inescapable ethical and justice issues raised by climate change. The chapter will argue that it is impossible to think clearly about what a nation should do in formulating climate policies until the nation responds to important ethical and justice issues on which every national climate change commitment must implicitly take a position. Yet, thus far there has been an almost universal failure of nations to explicitly identify how ethics and justice considerations have affected their policy choices. In this regard, the chapter will review what is actually known about how nations have considered or ignored ethical and justice principles in formulating climate policies by summarizing recent research on this question that is being conducted in 20 countries. In light of this, the chapter will explain why it is critically important to demand explicit reflection at the national level on how specific climate policies have considered or ignored ethical and justice issues that climate change policy-making raises. The chapter will conclude with recommendations on a strategy on how to get greater traction for ethical and justice considerations in national climate change policy formation even though there may be no universal agreement on what precisely ethics and justice requires of national responses to climate change. Climate change is a civilization challenging issue that has features that scream for attention that it be understood as essentially an ethical problem for nations, a fact that has profound consequences for national policy formation and a fact that most policy-makers in most nations have not acknowledged. A joint research project between Widener University School of Law and the University of Auckland School of Architecture and Planning reveals that there has been a widespread failure of nations to respond to several inescapable ethical issues raised by climate change policy formation. In addition the media in most high-emitting nations are failing to cover the ethical and justice failures of national climate change policies. This chapter will also explain why it is impossible to think clearly about what national climate commitments should be until policymakers respond to several clear ethical questions. Given that the international community is running out of time to prevent dangerous climate change and that there is little hope of limiting humaninduced warming to tolerable levels unless nations increase their climate change commitments to levels consistent with what ethics and justice require of them, the failure of nations to formulate climate change policies in response to their ethical and justice obligations is an urgent problem for the international community. In light of this urgency, this chapter ends by describing a strategy to increase national responses to climate change on the basis of their ethical obligations. In the language of the Comprehensive Integrity Framework (from Chapter 2), this chapter’s argument can be expressed as follows: In order to live up to the global climate regime’s public institutional justification (PIJ) of preventing dangerous anthropogenic global warming, individual

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nation-states, as crucial ‘nested’ institutions in that regime, must ensure they act in ways that accord with this over-arching purpose. As Chapter 2 argued, nested institutions must act on values that are at least congruent with (if not identical to) the larger regime’s PIJ. However, nation-states will only succeed in working together to achieve the collective goal if they explicitly incorporate ethical thinking into their climate policies – and specifically into the creation, discussion and communication of their national emissions-reduction targets. As such, each nation’s PIJ for its climate-related economic activities needs to be reformed to ensure that the nation can play its role in the larger climate regime’s pursuits of its PIJ (namely, drastically lowering global carbon emissions). This will only occur if mechanisms can be developed to ensure nation-states explicitly engage with core ethical issues. Features of Climate Change That Make it Essentially an Ethical Problem Climate change is a problem that has several features that demand that national policies be based upon ethical and justice obligations rather than on national self-interest. The features are: 1. It is a problem caused by high-emitting countries, entities and individuals that most harshly harms and threatens low-emitting, vulnerable, poor people and countries in the world including many people in large parts of Africa, South East Asia and the small island nations, among others. 2. The consequences from climate change to the vulnerable are not mere inconveniences but potentially catastrophic impacts on life and global ecological systems on which life depends caused by killer droughts, floods, heat waves, destructive storms, sea-level rise, and loss of water supplies needed for agriculture and drinking water. 3. Those most vulnerable to climate change often can’t do anything to protect themselves including petitioning their government for protection. Their best hope is that high-emitting nations, entities and individuals will respond to their ethical obligations to not harm others. 4. As this chapter will explain in more detail, the world is running out of time to prevent extraordinarily serious climate change that can only be avoided if the entire global community lives within a carbon budget that will limit warming to tolerable levels. According to the Intergovernmental Panel on Climate Change (IPCC), the world needs to limit the warming from all countries to 270 gigatons of CO2 to give the world an approximately 66 per cent chance of limiting warming to 20C, a level of warming that will create both very harsh consequences for some of the world’s poorest people while increasing the probability of rapid non-linear abrupt climate change. Therefore to prevent catastrophic climate change each nation must limit its greenhouse gas (GHG) emissions to its fair share of safe global emissions. For these reasons, climate change must be understood as fundamentally a problem of ethics and justice, an insight that has profound significance for policy formation because, among other things, high-emitting nations and entities may not formulate climate change policies on economic selfinterest alone if entities have ethical obligations to not harm others. They must base national climate change policies on ethical obligations to living and future generations of poor, vulnerable people and nations who will be most harmed by human-induced warming when formulating national climate change emissions reduction targets and determining funding obligations to poor, vulnerable developing nations for adaptation and losses from climate change.

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In fact, there are several policy issues that need to be faced in setting national climate policies that may not be thought of clearly until a nation faces the ethical issues that the policy question raises. For instance any national GHG emissions-reduction commitment is implicitly a position on two important ethical issues. These issues are: (a) an atmospheric GHG concentration goal and (b) the nation’s fair share of safe global GHG emissions. Because all GHG emissions will contribute to atmospheric GHG concentrations, any national target is implicitly a position on an acceptable atmospheric concentration level of GHGs. Yet the question of what is an acceptable atmospheric GHG concentration is an ethical question at its core because the atmospheric GHG level will determine the amount of harm that is experienced by vulnerable people and the ecological systems on which they depend. And so any national GHG emissions reduction target is implicitly a position on what amount of harm a nation chooses to impose on poor vulnerable people and nations. Although nations have a clear ethical duty to limit their emissions to their fair share of safe global emissions, they also have a legal responsibility to prevent dangerous climate change. For instance, all nations have ethical duties not to harm others outside their jurisdiction under the ‘no harm’ principle expressly agreed to in the United Nations Framework Convention on Climate Change (UNFCCC).1 Also all nations have agreed to adopt policies and measures to prevent ‘dangerous anthropocentric interference with the climate system’ under the UNFCCC.2 Therefore, nations have a clear legal duty to prevent their GHG emissions from causing atmospheric concentrations to rise to levels that will create serious harms to others. And so, any proposed GHG emissions target must be understood to be implicitly a position on both its ethical and legal obligation to limit atmospheric GHG concentrations to levels that will not greatly harm people and nations beyond their national boundaries. The international community has taken an initial position on what is an acceptable atmospheric GHG concentration in Copenhagen in the 2009 climate negotiations when nations agreed to limit warming to 2°C to prevent dangerous climate change.3 The international community has also agreed to further assess whether the 2°C warming limit needs to be replaced by a more stringent 1.5°C warming limit to avoid dangerous climate change impacts.4 Although the international community has identified these global warming limit goals, ethical issues remain about whether these warming limits are appropriate given that even if warming is limited to 1.5°C or 2°C, some vulnerable people are likely to be severely harmed. A 2°C warming limit was initially chosen because there is substantial scientific evidence that warming above 2°C could trigger rapid, non-linear climate change, threatening hundreds of millions of people around the world and the ecological systems on which life depends.5 Even if exceeding 2°C does not trigger very rapid warming, vulnerable people will be harshly harmed by this amount of warming.6

1 ‘United Nations Framework Convention on Climate Change’ (1771 UNTS 107; S. Treaty Doc No. 102–38; UN Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849, 1992), Preamble. 2 Ibid., Article 2. 3 For a history of where the 20°C warming limit came from, see Béatrice Cointe, Paul-Alain Ravon, and Emmanuel Guérin, ‘2°C: The History of a Policy-Science Nexus’, in Working Paper Climate, ed. IDDRI (Paris: IDDRI, 2011). 4 For a discussion of why 2°C is likely not stringent enough to prevent catastrophic climate change see Thomas Lovejoy, ‘The Climate Change Endgame’, New York Times, 31 January 2013. 5 Cointe, Ravon, and Guérin, ‘2°C: The History of a Policy-Science Nexus’. 6 Ibid.

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Stabilizing CO2 equivalent concentrations at 450 ppm (parts per million) would only result in a 50 per cent likelihood of limiting global warming to 2°C.7 Yet atmospheric concentrations of CO2 have already reached 400ppm and are growing every year. And so, the challenge facing the world to limit future warming to tolerable levels is extraordinarily daunting, and will likely require a level of global cooperation far beyond any other previous human problem. Once an atmospheric stabilization goal is determined, it is possible to calculate a budget of total GHG emissions that the entire world must live within to achieve that atmospheric stabilization goal. In 2013 the IPCC identified the carbon emissions budget that is needed to constrain GHG emissions from the entire world to limit warming to 2°C and thus give some hope of avoiding dangerous climate change.8 This budget is of profound significance for national, state and regional GHG emissions reductions targets, yet it has been infrequently discussed in national discussions about climate change policy.9 To give the world an approximately 66 per cent chance of keeping warming below 2°C, the entire global community must work together to keep global GHG emissions from exceeding approximately 270 metric gigatons of carbon dioxide equivalent emissions. (A gigaton is one billion tons.) The practical meaning of this budget is that when the 270 gigtatons of carbon dioxide equivalent emissions have been emitted, the entire world’s GHG emissions must be zero to give reasonable hope of limiting warming to the 2°C. Since the world is now emitting CO2 equivalent emissions at approximately 10 metric gigatons per year, the world will run out of emissions under the budget in approximately 27 years at current emissions rates. This is a daunting challenge for the world, particularly in light of the fact that global GHG emissions levels continue to increase. Yet any national GHG emissions target is implicitly a position on a nation’s position on a global carbon budget its emissions reductions will achieve. Any national GHG emissions target is also implicitly a position on that nation’s fair share of an acceptable carbon budget. This issue of ‘fairness’ raises classic issues of distributive justice and therefore is an ethical issue at its core. And so any nation’s GHG emissions target is implicitly a position on what justice requires of the nation as a percentage of global emissions that will achieve a safe carbon budget. The fair allocation question is often debated in international climate negotiations on the basis of what ‘equity’ requires and what ‘common but differentiated responsibilities’ (CBDR) means under the UNFCCC. This so because nations agreed when they ratified the UNFCCC to adopt policies and measures to: protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.10

While all GHG emissions targets are implicitly a position both on the carbon budget issue and the equity and justice issue, as we will see, recent research on what ethical considerations nations have

7 Ibid. 8 Andrew Freedman to cimatecentral.org, 2013, http://www.climatecentral.org/news/ipcc-climatechange-report-contains-grave-carbon-budget-message-16569 (accessed 12 February 2015). 9 National Climate Justice, ‘Research Project in Ethics and Justice in Formulating National Climate Change Policies’, National Climate Justice, http://blogs.law.widener.edu/ncj/contact/#sthash.wjGQa0RX. dpbs (accessed 20 May 2015). 10 ‘United Nations Framework Convention on Climate Change’, Article 3.

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considered or ignored in making climate change commitments has concluded that national policymakers have very rarely discussed their implicit normative assumptions on these issues. A strong case can be made that any government should be required to expressly identify its assumptions about what remaining carbon budget their GHG emissions reduction target will achieve in cooperation with others as well as the equity and justice principles which were followed in determining the government’s fair share of safe global emissions in setting the nation’s target. This is so because such assumptions are necessary to evaluate any national target through an ethical lens. Every claim about what a nation should do in response to climate change has both a factual assumption (usually the domain of science) and normative claim (the domain of ethics and law). As a result all claims about what a nation’s climate policy should be contains an implicit normative claim. For instance a claim that a nation’s climate policy must consider its economic interests is sometimes based upon the ethically dubious implicit normative claim that a nation’s economic interests trump its ethical obligations to not cause great harm to others. If controversial normative assumptions of a nation’s climate change policy are not made explicit these controversial ethical positions on national justifications for their climate change policies will remain obscure behind what appear to be at first glance ‘value-neutral’ scientific and economic claims. Because few citizens have been trained to spot ethical issues in technical arguments and because governments are not disclosing the normative assumptions that have been made when they claim what their climate change policies should be, it is important that governments be required to expressly identify their ethical assumptions. Climate change policy-making must also face other important ethics and justice issues including who should be financially responsible for funding necessary adaptation measures in poor vulnerable countries which have done little to cause the problem and what are the responsibilities of sub-national governments, businesses, organizations and individuals to reduce GHG emissions. Results of Research on Whether Nations are Considering or Ignoring Ethical Issues in Policy Formation A new research project organized by Widener University School of Law and the University of Auckland School of Architecture and Planning is investigating how nations have considered or ignored ethics and justice considerations in developing national climate change policies and commitments on climate change.11 This research has been examining ten questions in regard to how nations are responding to their ethical and justice obligations entailed by climate change. These questions focus on whether nations have specifically: • acknowledged ethical obligations to reduce GHG emissions to the nations fair share of safe global emissions; • explained how they have taken ethics and justice into consideration; • identified the GHG atmospheric concentration stabilization level that the national emissions reduction target seeks to achieve;

11 For a description of this project and a summary of lessons learned see ‘Research Project in Ethics and Justice in Formulating National Climate Change Policies’.

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• identified the ethical and justice considerations that it took into account in allocating a percentage of global GHG emissions to the nation; • acknowledged that nation’s emitting GHG above its share of safe global emissions have a responsibility to fund reasonable adaptation measures or unavoidable losses and damages in poor developing countries; • identified what formal mechanisms are available in the nation for citizens, non-government organizations (NGOs) and other interested parties to question/contest the nation’s position on its ethical obligations for climate change; • explained how the concept of climate justice is understood by the current government; • encouraged regional, state, provincial or local governments in a country to acknowledge some ethical responsibility for climate change; and • Encouraged individuals, businesses, organizations, sub-national governments or other entities to recognize that they have some ethical duty to reduce GHG emissions. So far the project has reports from the United States, Canada, Australia, New Zealand, Netherlands, Russia, China, South Africa, Kenya, Italy, Bolivia, Thailand, Mauritius, Fiji, Thailand, Uganda, and Ghana. In addition reports are expected soon from Germany, the United Kingdom and others. This research has revealed that almost all nations are not explaining the normative assumptions on which their climate change policies have been based and are either ignoring their ethical duties to the rest of the world in formulating national climate policies or basing their national climate policies on ethically unacceptable normative assumptions about national economic interests. For this reason, it is practically, and given the urgency of the need to reduce global GHG emissions, extraordinary important to quickly create a mechanism for subjecting national climate change policies to public scrutiny through an ethical lens. In addition to the above general conclusions, the research project has revealed that: • All nations are setting national policies based, at least in part, on economic self-interest rather than global responsibilities, including even those few nations that have acknowledged some responsibility to limit warming to 2°C and to base their climate commitments on their fair share of safe global emissions. • A few countries have acknowledged that their national commitments should be based on equity but do not describe how their national commitments have been derived from any specific equity framework. • Bolivia is the only country that has challenged the 2°C warming limit as being not stringent enough. • South Africa, unlike most developing countries, has acknowledged that it has a responsibility to limit its GHG emissions to its fair share of safe global emissions and has set emissions reductions targets to reduce its emissions by 34 per cent by 2020 and 42 per cent by 2025 below business as usual emissions. This was a conditional pledge made on the provision that South Africa receives financial and technological support to implement its climate change policies from developed countries. Yet even South Africa does not explain how their emissions reduction targets are derived from a global equity framework that could be applied to all nations. • Many developing countries claim that they have no obligations to live within the emissions reduction target because they are a developing country. Yet ethics and international law would require all nations to limit their GHG emissions to their fair share of safe global emissions notwithstanding the fact that developing countries may be able to argue that equity and justice allow them to increase their emissions while developed countries greatly reduce their emissions.

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• China justifies its non-binding emissions reduction goal on the basis that its higher emissions have been caused by the need to produce products for consumption in developed countries. • The use of the term ‘fair share’ is being used by some countries as justifying economic growth rather than as interpretation of what distributive justice would require of them. • Many countries are looking only at harms and benefits to themselves and ignoring clear ethical and legal duties to not harm non-citizens. • Bolivia emphatically asserts that all nations have the right to a fair share of atmospheric space and that emissions-reduction targets must consider per capita and historical missions. • Only the United States has denied the obligation of high-emitting developed nations to pay for adaptation costs and losses and to pay for damages in poor vulnerable countries. No developed nation is linking its commitments to support adaptation in developing countries to their ethical responsibilities to pay for the adaptation needs of poor nations. Most countries that are funding allocation in developing countries appear to be arguing that their adaptation commitments are attributable to their voluntary largess, not ethical responsibility. • Most nations do not provide a formal mechanism for citizen involvement and participation in setting national GHG emissions reduction commitments. • Although there is considerable and growing activity on climate change at the sub-national government level around the world, there are only a few examples of sub-national governments including state, provincial and regional governments that have acknowledged some responsibility to consider ethical and justice obligations in setting their GHG emissions reduction target. This research has been largely motivated by the widespread belief that unless nations increase their GHG emissions reductions to levels consistent with their equitable and ethical obligations, there is little hope that the international community will be able to prevent dangerous climate change and that, as a result, hundreds of millions of the poorest people in the world and future generations will suffer the harshest consequences. The idea for the project was inspired in part by lessons learned from international human rights regimes which have been somewhat successful in advancing human rights by requiring nations to expressly explain how national policies protect and fulfil their human rights obligations. A large and growing literature linking climate change with human rights has arisen in the last decade.12 One of the ways that human rights protections have been extended throughout the world through the provisions of human rights law that require nations to regularly report on their human rights compliance to human rights committees and tribunals that have been formed at the

12 Some of the most comprehensive literature on the subject includes: Daniel Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’, Georgia Journal of International and Comparative Law 38, no. 3 (2010); Stephen Humphreys, ed. Human Rights and Climate Change (Cambridge: Cambridge University Press, 2010); John Knox, ‘Climate Change and Human Rights Law’, Virginia Journal of International Law 50, no. 1 (2009–2010); United Nations High Commissioner for Human Rights, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’ (Geneva: OHCHR, 2009), http://www.ohchr.org/en/countries/nhri/ pages/nhrimain.aspx (accessed 18 May 2015); World Bank, Human Rights and Climate Change, a Review of the International Legal Dimensions (Washington: World Bank, 2011), http://siteresources.worldbank.org/ INTLAWJUSTICE/Resources/HumanRightsAndClimateChange.pdf (accessed 15 May 2015); Center for International Environmental Law, ‘Climate Change and Human Rights, a Primer’ (2010), http://www.ciel. org/Publications/CC_HRE_23May11.pdf (accessed 18 May 2015).

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international and regional level to monitor national human rights compliance.13 When nations report to these bodies they must explain how they are complying with the human rights obligations to which they have consented when they ratified one of the human rights treaties. This reporting process often begins with the nation submitting a report on its compliance with a specific human right. This is followed by a review of the nation’s compliance by the human rights committee established by the relevant treaty. Some human rights committees allow NGOs and other governments to submit reports on the nation’s claims about its compliance with its human rights obligations. These comments on the nation’s human rights performance usually trigger an obligation of the nation to submit a response to the comments. This regular reporting on human rights compliance has led to improved human rights compliance by some nations through the creation of a clear public record on the nation’s human rights compliance which allows governments and citizens around the world to pressure governments to live up to their human rights obligations. Strategy for Increasing National Responses to Climate Change on the Basis of Ethics and Justice In light of the above, a strategy for assuring that nations respond to their ethical and justice obligations is recommended which includes three elements: • A mechanism for requiring a nation to expressly explain how it responded to its ethical and justice obligations for climate change. • A public awareness campaign of national compliance with ethical and justice obligations. • The development of a set of standard questions that nations must respond to in light of the fact that many nations justify national climate policies on the basis of national economic interest rather than on global ethical responsibility. The Mechanism This kind of public scrutiny on national compliance with national human rights obligations needs to be replicated for national compliance with its ethical and justice obligations for climate change. Given the propensity of nations to base domestic climate change policy on national economic interest alone and in light of the vital importance of national responses based on their ethical obligations, the international community must create a mechanism to require nations to expressly explain how they have responded to their ethical and justice obligations for climate change. This mechanism could be established as part of national reporting requirements under the UNFCCC. A Public Awareness Campaign Citizens concerned about climate change need to demand that the national-level debate about climate change policies expressly identifies the ethical and justice failures of national policy. For this reason, civil society needs to greatly increase the public’s awareness of ethical failures of national climate policies by encouraging national media to report on the ethical and justice dimensions 13 United Nations, Human Rights (Geneva: OHCHR, 2014), http://www.ohchr.org/en/countries/nhri/ pages/nhrimain.aspx (accessed 18 May 2015).

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of climate change. In at least some nations, the United States for instance, the media has utterly failed to cover the ethical and justice issues that are at the heart of contention in international climate negotiations.14 There is little hope that nations will respond to their ethical obligations to reduce the threat of climate change if national-level NGOs fail to make the ethical dimensions of national climate change policy visible in national climate change debates about national climate change policies. A Set of Standard Questions to be Answered by Nations In light of the widespread practice of nations to base climate change policies on national interest rather than global ethical and justice issues, all nations should be required to answer a set of standard questions. These questions should include the following: • Does the nation agree that it has a responsibility under international law and ethical principles to adopt policies on climate change that prevent atmospheric concentrations of GHG that don’t cause harm to people and nations outside its national jurisdiction? • To what extent has the national response to climate change in setting a GHG emissions reduction target expressly considered that the nation not only has economic interests in setting a national GHG reduction target but also ethical obligations to those who are most vulnerable to climate change and that any national GHG emission-reduction target must represent the nation’s fair share of safe global emissions? • In making a national commitment to reduce GHG emissions under the UNFCCC, to what extent, if at all, has the nation explained how it took equity and justice and its legal obligations not to harm others outside its jurisdiction into consideration in setting its GHG emissions reduction target? • Given that any national GHG emissions target is implicitly a position on achieving an atmospheric GHG concentration that will avoid dangerous climate change, to what extent has the nation identified the GHG atmospheric concentration stabilization level that the national emissions reduction target seeks to achieve in cooperation with other nations? • Given that any national GHG emissions target is implicitly a position on the nation’s fair share of safe global emissions, to what extent has the nation identified the ethical and justice considerations that it took into account in allocating a percentage of global GHG emissions to the nation through the identification of a GHG emissions reduction commitment. • To what extent, if at all, does the nation acknowledge that any nation emitting GHG above its share of safe global GHG emissions has a responsibility to fund reasonable adaptation measures or unavoidable losses and damages in poor developing countries? • What formal mechanisms are available in the nation for citizens, NGOs and other interested organizations to question/contest the nation’s ethical position on climate change? • How is the concept of climate justice understood by the current government? • Has any regional, state, provincial or local governments in your country acknowledged some ethical responsibility for climate change? If so, what have they said?

14 Donald Brown to Ethics and Climate (2012), http://blogs.law.widener.edu/climate/2012/10/30/ the-us-medias-grave-communication-failure-on-the-magnitude-of-ghg-emissions-reductions-necessary-toprevent-dangerous-climate-change/#sthash.qdpnFZmj.dpuf (accessed 18 May 2015).

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• Has the national government taken any position on or otherwise encouraged individuals, businesses, organizations, sub-national governments or other entities that they have ethical duties to reduce GHG emissions to levels consistent with their ethical obligations? • Does the nation acknowledge that nations who are exceeding their fair share of safe global emissions are contributing to human rights violations in other countries? • Does the nation agree with the recent conclusions of the IPCC, Working Group III in regard to the use of economic justifications for national climate change policies that: –– The methods of economics are limited in what they can do … They are suited to measuring and aggregating the well-being of humans, but not in taking account of justice and rights. –– Since the methods of economics are concerned with value, they do not take account of justice and rights in general. –– Economics is not well suited to taking into account many other aspects of justice, including compensatory justice. –– Conventional climate policy analysis that is based too narrowly on traditional utilitarian or cost–benefit frameworks will neglect critical equity issues. These oversights include human rights implications and moral imperatives, the distribution of costs and benefits of a given set of policies, and the further distributional inequities that arise when the poor have limited scope to influence policies.15 • What if any of the frameworks for allocating national emissions reductions that have been frequently discussed in international negotiations or meetings do you agree with? More specifically do you agree with the ‘contraction and convergence’ framework, the ‘greenhouse gas development rights’ framework or other frameworks for allocating national GHG emission that have been discussed in international negotiations? • Does the nation agree with the recent conclusions of the IPCC, Working Group III in regard to the meaning of ‘equity’ under the UNFCCC that: –– There is a basic set of shared ethical principles and precedents that apply to the climate problem … [and] such principles … can put bounds on the plausible interpretation of ‘equity’ in the burden sharing context … [and] are important in establishing what may be reasonably required of different actors. –– Common sense ethics (and legal practice) hold persons responsible for harms or risks they knowingly impose or could have reasonably foreseen, and in certain cases, regardless of whether they could have been foreseen.16 • Do you agree that the historical emissions levels should be a consideration in determining national GHG emissions allocations and commitments in such a way that those nations that have consistently emitted GHG at levels beyond their fair share of safe global emissions should adjust their commitments to compensate for prior emissions? If you disagree with the need to consider historical emissions, how do you interpret the ‘polluter pays’ principle in regard to national GHG emissions targets? • If you agree that historical emissions should be a consideration in calculating national GHG emissions allocations, explain the basis for your conclusions about when historical emissions obligations should be triggered. That is, what year are obligations for historical 15 Intergovernmental Panel on Climate Change (IPCC), Climate Change 2014: Mitigation of Climate Change: IPCC Working Group III (New York: Cambridge University Press, 2014), Chapter 3, http://www. ipcc.ch/report/ar5/wg3/ (accessed 19 May 2015). 16 Ibid., Chapter 4.

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emissions triggered? For instance, should all historical emissions of GHG emissions be considered in adjusting national GHG targets or should obligations for historical emissions obligations begin at a certain year such as 1990, the baseline year for the UNFCCC and the year in which the first IPCC report was released, 1992 the year in which the UNFCCC was finalized, or what year? Please state your reasons for your conclusions. Do you agree that nations should consider their per capita emissions in determining their fair share of safe global emissions? If not, why not? Do you agree that the needs of poor people to engage in activities necessary for survival in poor countries should be entitled to priority over activities that support luxury consumption in rich countries when allocating national emissions targets? Do you agree that high-emitting individuals and organizations in both developed and developing countries have responsibilities to minimize their GHG emissions when feasible? Do you agree that governments in all countries have a duty to encourage the reduction of unnecessary or wasteful practices that generate GHG emissions by sub-national governments, organizations, businesses and individuals within their jurisdiction? If so, what specifically are you doing in your country to discourage unnecessary or wasteful activities that generate GHG emissions by sub-national governments, organizations, businesses and individuals in your countries? Do you agree that all nations have a duty to reduce their emissions to their fair share of safe global emissions without regard to what other nations do to reduce their GHG emissions?

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Chapter 6

The Context-Integrity of the Global Carbon Regime: The Relevance and Impact of the World Trade Organization Felicity Deane

The nature of sovereignty means that the integrity of international institutions is dependent upon the implementation and acceptance of values and policies by the participating nationstates. In this regard, when nation-states participate in a number of institutions, as they must do, they are required to accept the underpinning values of each of those institutions in order to maintain institutional integrity. Without this acceptance any participation is meaningless, and the institution’s policies will not be implemented in a way that achieves the public institutional justification (PIJ). Therefore, it is important for international institutions to consider each other’s values and align with those values in so far as it is possible. This is so nation-states do not need to resolve conflicting values in the pursuit of institutional objectives. In the study of the integrity of the global carbon regime there are a number of institutions that must be considered for their impacts on this system. In particular, the subject matter of this chapter is concerned with the main international institution for trade, the World Trade Organization (the WTO). Otherwise stated, this chapter is concerned with how the institutional integrity of the global carbon regime aligns with the values and policy objectives of the WTO. This is done with a view to consider whether the global carbon regime aligns with these values and objectives in a way demonstrative of context-integrity.1 This alignment is not a single-sided undertaking and, therefore, it is essential that the underlying values of the WTO themselves align with the global carbon regime. I suggest this is particularly crucial given the importance of the objectives of the climate change regime, and the scientific predictions of the current climate projections. It is the broader purpose of this publication to investigate the institutional integrity of the global carbon regime through an analysis of values. In doing this, Chapter 2’s Comprehensive Integrity Framework recognized that this integrity is dependent on the achievement of three sub-categories – consistency-integrity, coherence-integrity and context-integrity. Consistencyintegrity requires that an institution act in accordance with the values that have been publicly asserted in the form of the PIJ. Coherence-integrity is in reference to the members of the institution and consistency of values between the members and the institution itself. This chapter does not consider the coherence-integrity of the members of either the global carbon regime or the WTO. The focus of this chapter is on the third element of integrity, but is limited in its analysis to the context-integrity of both the global carbon regime and the WTO in relation to each other. The phrase context-integrity suggests the integrity of an institution is influenced by its external 1 Context-integrity is demonstrated when an institution considers its external environment in the pursuit of its policy objectives.

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environment and this external environment includes how it interacts and aligns with other institutions.2 As noted in the introduction to this book, the context-integrity has the potential do one of three things for an institution’s consistency-integrity. First it may promote an institution’s consistency-integrity, second it may align with an institution’s consistency-integrity and third, it may thwart an institution’s consistency-integrity. This chapter considers the second of these impacts, and examines whether the external environment of the global carbon regime aligns with its PIJ, to reduce greenhouse gas (GHG) emissions and mitigate climate change. In this chapter I argue that the WTO is an institution that is part of the global carbon regime’s external environment and therefore its values and objectives cannot be ignored in pursuit of the objectives of the carbon regime. The WTO’s PIJ, being free and non-discriminatory trade, includes the values of sustainability and consideration of members’ different economic needs. Therefore in order for this institution to claim consistency-integrity the actions, decisions and rules must accord with this justification. Although the consistency-integrity is not the specific focus of this chapter, within it I briefly consider whether certain WTO decisions demonstrate consistency-integrity in relation to sustainable development as one of the values inherent in the PIJ. The global carbon regime is considered in the final part of this chapter to determine if the objectives of free and non-discriminatory trade are considered in any way by this institution. I conclude that, theoretically at least, there is an alignment of values and objectives. However, only a thorough analysis of the consistency- and coherence-integrity of these international regimes would answer whether this is done in a way demonstrative of genuine institutional integrity. The External Environment of the International Climate Change Regime Climate change scholars frequently question the relevance of laws of trade when considering the integrity of the climate change regime. One can understand why this is the case when the severity of the predictions of climate change are noted. The sceptical response to the values of an institution that outwardly appears to have economically driven outcomes is understandable. However, when we consider the institutional arrangements in greater detail this blatant dismissal may appear somewhat premature. In this section I seek to explain why the WTO is part of the climate change regime’s external environment and therefore forms part of the consideration of this regime’s institutional integrity. The first justification I offer is that, in theory at least, there are economic benefits associated with unfettered international trade and because of this international trade rules have value globally. Economic neo-liberals regard free trade as a policy necessary to maximize global wealth and utility. This is often associated with the economic theory of comparative advantage. This theory suggests some countries will not be ‘absolutely’ most efficient at producing something, however, it suggests that they will be comparatively so as a result of resource availability. For this reason, the theory of comparative advantage suggests that international trade will be economically beneficial for participants, and alleviates the need for each country to produce everything needed by its citizens. This means, if the different nation-states work together, in so 2 Charles Sampford, Rodney Smith and A.J. Brown, ‘From Greek Temple to Bird’s Nest: Towards a Theory of Coherence and Mutual Accountability for National Integrity Systems’, Australian Journal of Public Administration 64, no. 2 (2005): 432; Allen Buchanan and Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs 20, no. 4 (2006): 432.

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far as this is possible, they can produce more products and make better use of resources than if each country applies protectionist policies. The idea of the world working together may seem slightly unrealistic when we consider the reality of global relations. Certainly protectionism and national self-interest hinder this cooperation, but it is the values that we are considering here, rather than any practical erroneous application of them. The second argument tendered in support of the WTO as an institution relevant to the carbon regime basically suggests that the convergence of each other’s values need not have a negative impact. Certainly, international cooperation can promote environmental objectives in some instances. In relation to free international trade, products and services that can be described as environmentally beneficial can advance the mitigation of climate change. Therefore, any barriers to the trade in these products and services may negatively impact on any desired environmental objectives. International negotiations associated with both trade and climate change objectives have established a clear connection between the international climate change regime and WTO law. The flexible arrangements of the international climate change regime and the strict rules of WTO law are connected through their recognition of the other’s objectives. This recognition is explored in more detail in later parts of this chapter. Finally, one may suggest that there is no need for justification as the interaction between the regimes is in fact a reality in international relations. Both international trade and climate change mitigation are global issues that can only be properly addressed through multilateral negotiations. The global nature of environmental issues, such as climate change, means that the linkage with international trade is perhaps ‘inevitable’. Further, it has long been known that the pursuit of the ends of trade or environmental protection can present a risk that the other may be impeded as a result of certain policy measures. Because of this, there must be a commitment to avoid conflicts between competing objectives, and to ensure that environmental policies are not overly or unnecessarily trade restrictive. The interaction between the regimes is also clear when one considers the methods introduced to mitigate climate change. There have been a number of emissions trading schemes introduced throughout the world. This has followed the inclusion of international emissions trading as a mechanism within the international climate change regime. This mechanism provides a means to account for, and encourage the reduction of, each nation’s GHG emissions. Through international emissions trading and other flexible mechanisms the international climate change regime has encouraged the introduction of regional and domestic emissions trading schemes. For these reasons, the institution of the WTO and the international climate change regime must consider each other’s values in the pursuit of their own policy objectives. Further, the overlap of participating nation-states in each of these regimes is significant and therefore when nations look to implement policies that align with institutional goals they cannot do this in a way that will thwart the alternative institution’s objectives. As the WTO is clearly a current institution in the global carbon regime’s external environment, in order to demonstrate context-integrity of this regime, the values of the WTO must be considered in the pursuit of the climate change regime’s policy objectives. Therefore in the next section I begin by considering what the WTO’s underlying values actually are.

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World Trade Organization The International Trade Organization and the Formation of the World Trade Organization The formation of the WTO occurred at a fascinating point in international negotiations, notably after the first of the climate change agreements was drafted.3 Despite being a relatively young institution, the history of the WTO began more than 50 years before its formal establishment. Its origins can be traced to the use of trade barriers as protectionist policies during the Second World War.4 These barriers were so pronounced that the US Undersecretary of State suggested that ‘resultant misery, bewilderment, and resentment’ led, in part at least, to the rise of the dictatorships responsible for the war.5 Following the formation of the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (the World Bank) at the Bretton Woods conference in July 1944, the United States proposed an International Trade Organization (ITO).6 Following this proposal, negotiations relating to the ITO were conducted over a two-year period. During this period, an agreement on a draft of the ITO Charter emerged,7 in March 1948.8 Concurrent to these negotiations, the General Agreement on Tariffs and Trade (the GATT 1947)9 was drafted and agreed between nation-states.10 The purpose of the GATT 1947 was to relax tariffs and other trade restrictions between its signatories. This was only one aspect of the original objectives of the ITO. However, the GATT 1947 became the only agreement regulating international trade11 after the United States withdrew its support for the ITO in 1950.12 From 1947, the number of parties adopting the terms of the GATT 1947 grew significantly. With this came success in reducing barriers to trade.13 Although the GATT 1947 was not administered by a formal institutional body, a small Secretariat was based in Geneva to provide a means for the resolution of disputes and complaints between members.14 The lack of formal institutional arrangements proved to be a deficiency in the GATT 1947. There were also several other notable 3 ‘United Nations Framework Convention on Climate Change’ (1771 UNTS 107; S. Treaty Doc No. 102–38; UN Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849, 1992), Opened for Signature 4 June 1992, 771 UTS 107 (Entered into Force 21 March 94). 4 David Palmeter and Petros C. Mavroidis, Dispute Settlement in the World Trade Organization: Practice and Procedure (Cambridge: Cambridge University Press, 2004): 1. 5 Ibid. 6 Ibid., 2. 7 Interim Commission for the International Trade Organization, ‘Final Act of the United Nations Conference on Trade and Employment: Havana Charter for an International Trade Organization’ (New York: Interim Commission for the International Trade Organization, 1948). 8 Peter Van Den Bossche, ed. The Law and Policy of the World Trade Organization, 2 ed. (Cambridge: Cambridge University Press, 2008): 78. 9 General Agreement on Tariffs and Trade (55 UNTS 194, Opened for Signature 30 October 1947) (Entered into Force 29 July 1948). 10 Palmeter, David, and Petros C. Mavroidis. Dispute Settlement in the World Trade Organization: Practice and Procedure. Cambridge: Cambridge University Press, 2004. 11 Michael Pryles, Jeff Waincymer, and Martin Davies, International Trade Law Commentary and Materials (Pyrmont: Lawbook Company, 2004): 80. 12 Meredith A. Crowley, ‘An Introduction to the WTO and Gatt’, Economic Perspectives 27 (2003): 43. The United States cited lack of coherency in the Congress for the withdrawal of support for the ITO Charter. 13 Ibid. 14 Ibid.

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omissions from this agreement that became more problematic over time.15 With international trade escalating rapidly it became apparent that a new round of negotiations would be needed to address these weaknesses. This occurred at the ‘Uruguay Round’ of negotiations that commenced in 1986. It was during these negotiations where the framework for the WTO was established.16 It was not part of the original negotiation agenda to create a new international trade organization and it was not until 1990 that proposals to establish such an organization were developed.17 These proposals were originally opposed by the United States and many developing countries.18 However, by 1993 most participating nation-states were willing to agree to establish an organization to administer international trade rules.19 The Uruguay Round achieved much more than the formation of a new organization for international trade regulation. The collective result of these negotiations was contained in the ‘Final Act’ that included 60 different treaties.20 Of these, 30 were included in some form in the Marrakesh Agreement Establishing the WTO (the WTO agreement).21 The remaining agreements were primarily ministerial decisions and declarations.22 The GATT 1947 was replaced by the General Agreement on Tariffs and Trade 1994 (the GATT).23 The provisions of the GATT 1947 agreement along with all decisions and practices adopted under this agreement were still to apply to WTO members, unless it was directly inconsistent with the new GATT agreement.24 The WTO agreement does not include substantive rules of international trade. Rather, the WTO agreement encapsulates the guidelines for ‘institutional and procedural’ requirements necessary for the implementation of the rules as negotiated during the Uruguay Round.25 These rules are attached to the WTO agreement as Annexes. There is little directly said in the WTO agreements about the values that underpin its PIJ. However, I would argue that evidence of these values can be found in the preamble to the WTO agreement. The preamble contains both the justification for the organization and the values with which this justification must align. It is suggested that the justification incorporates the requirements to raise standards of living, expand production and allow for the optimal use of the world’s resources. Also stated in the preamble are the values that must underpin these objectives. These include sustainable development, protecting and preserving the environment, and consistency with different economic needs. Consistency with different economic needs has been likened to the principle of ‘common but differentiated responsibilities’

15 Ibid. These exclusions included: ineffective dispute settlement mechanisms, exclusions for some commodities including agricultural products and textiles, no regulation for the trade in services and no intellectual property protection. 16 Ibid. 17 John H. Jackson, The World Trade Organization: Consitution and Jurisprudence (London: Biddles Limited, 1998): 5. 18 Van Den Bossche, The Law and Policy of the World Trade Organization, 83. 19 Ibid. 20 Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge: Cambridge University Press, 2003): 41. 21 ‘Marrakesh Agreement Establishing the World Trade Organization’, UNTS (1867 UNTS 154, 1994). 22 Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law, 42. 23 ‘Marrakesh Agreement Establishing the World Trade Organization’, Annex 1A (General Agreement on Tariffs and Trade 1994). 24 Ibid., Article XVI. 25 Jackson, The World Trade Organization: Consitution and Jurisprudence, 6.

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(CBDR).26 If this is accepted then it is possible to argue that the institutional integrity, specifically the consistency-integrity of the WTO, requires that the PIJ of free trade is pursued with sustainable development and CBDR in mind. I consider the extent that these values are promoted by the WTO in more detail below. Sustainable Development and the World Trade Organization The statements contained within the GATT preamble can be contrasted with the GATT 1947 preamble. The GATT 1947 preamble indicated that the negotiators charged with developing the 1947 agreement did not envisage any environmental impacts of increasing production and trade worldwide. By comparison, the parties negotiating the formation of the WTO did not ignore the inevitable interconnection between the environment and trade. Indeed, there is considerable importance in the extended preamble of the WTO agreement. The current WTO preamble appreciates the balance between production and trade on one hand and the environment and resources on the other.27 Certainly, the legal significance of the preamble has been recognized in a number of Panel and Appellate Body decisions.28 In the US–Shrimp29 dispute, for example, reference was made to the previous preamble of the GATT 1947 to demonstrate the importance of the new environmental considerations contained in the WTO agreement preamble: Those negotiators evidently believed … that the objective of ‘full use of the resources of the world’ set forth in the preamble of the GATT 1947 was no longer appropriate to the world trading system of the 1990s. As a result, they decided to qualify the original objectives of the GATT 1947 …30

This qualification of the original objectives certainly aligns more closely with the values of multilateral environmental agreements. The inclusion of sustainable development within the preamble of the WTO agreement aids in the interpretation of the covered agreements31 and highlights the importance of environmental sustainability in the pursuit of free trade. Sustainable development was officially defined internationally in the Brundtland Report32 in 1987 to mean ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.33 It has been said that the importance of 26 Fabio Morosini, ‘Trade and Climate Change: Unveiling the Principle of Common but Differentiated Responsibilities from the WTO Agreements’, The George Washington International Law Review 42 (2010): 723. 27 Disputes under the WTO consider the objective and purpose of the WTO rather than the GATT 1947. WTO Appellate Body, ‘Report: United States – Import Prohibition of Certain Shrimp and Shrimp Products’ (WT/DS58/AB/R, 12 October 1998), [152–55]. Quoted in WTO Analytical Index: Guide to WTO Law and Practice, 2 ed. (Cambridge: Cambridge University Press, 2007): 23. 28 See, for example, ‘Report: United States – Import Prohibition of Certain Shrimp and Shrimp Products’. ‘Report: United States – Standards for Reformulated and Conventional Gasoline’ (WT/DS58/ AB/R, 6 November 1998). 29 ‘Report: United States – Import Prohibition of Certain Shrimp and Shrimp Products’ (WT/DS58/ AB/R, 1998). 30 Ibid., 152–55. (Cited in WTO Analytical Index: Guide to WTO Law and Practice, 23). 31 Steve Charnovitz, ‘An Introduction to the Trade and Environment Debate’, in Handbook on Trade and the Environment, ed. Kevin Gallagher (Cheltenham: Edward Elgar, 2008): 237, 40. 32 World Commission on Environment and Development, Our Common Future (New York: United Nations, 1987). 33 Ibid., 44.

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sustainable development cannot be overstated with regard to the development of environmental policy and law.34 Internationally this principle is recognized as the ‘foundation of contemporary environmental law’.35 Further, it is indisputable that environmental sustainability encompasses the need to address the global challenge of climate change. In this respect, theoretically at least, the values that underpin the policy goals of the WTO draw a connection with those of the global carbon regime. Although the importance of clearly stated values in international regimes is crucial to the pursuit of an organization’s PIJ and corresponding institutional integrity, it is also vital that these values are pursued in a way that demonstrates consistency-integrity. That is, the decisions, negotiations, rules and policies of the international institutions must align with the values as stated by the organization. This can potentially mean different things for different organizations but, in relation to the WTO, practical adherence to the values may mean that the covered agreements and subsequent dispute settlement decisions display evidence that the values have been evaluated and applied in the course of those decisions. The following paragraphs consider where there is evidence of sustainable development as a value in the covered agreements and analyses some of the corresponding dispute settlement decisions. The General Agreement on Tariffs and Trade (GATT) exception provisions and sustainable development Throughout the WTO-covered agreements there are exception provisions that allow divergence from the rules as stated within those agreements. These exceptions are generally limited in their application to divergence from the rules of the particular agreement they are contained within.36 Further, strict standards must be met in order for a state member to rely on an exception provision as can be demonstrated when one considers the body of WTO jurisprudence. Considering this, the WTO exception provisions do demonstrate a degree of consistency-integrity of this institution. Evidence of consistency-integrity appears in most covered agreements, which often include an exception for measures that pursue ends that align with the stated values. In regards to the subject matter of this chapter, Article XX of the GATT contains two separate paragraphs that define exceptions relating to health and environmental protection.37 The first of the environmental exceptions is contained in paragraph (b) of Article XX of this agreement. This paragraph has two requirements beyond the satisfaction of the chapeau. For paragraph (b) to apply the domestic measure must: • be designed to protect human, animal or plant life or health; and • be necessary to achieve the protection.38 34 Gerry Bates, Environmental Law in Australia, 6 ed. (Melbourne: LexisNexis Butterworths, 2006): 117. 35 Ibid., 2. 36 WTO Appellate Body, ‘Report: China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products’ (WTO Doc WT/DS363/AB/R, 19 January 2010). 37 See, for example, United Nations Security Council, ‘Security Council, in Statement, Says “Contextual Information on Possible Security Implications of Climate Change Important When Climate Impacts Drive Conflict”: “Make No Mistake”, Says Secretary-General, “Climate Change Not Only Exacerbates Threats to Peace and Security, It Is a Threat to International Peace and Security”’ (Press Release, SC/10332, 20 July 2011). 38 WTO Appellate Body, ‘Report: United States – Standards for Reformulated and Conventional Gasoline’, 25.

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Panels have generally interpreted the requirement of the ‘protection of human, animal or plant life or health’ broadly. Based on the dispute judgements it appears sufficient for a Member to identify that it has lessened a risk to human animal or plant life of health, through a domestic regulation.39 For this element at least it appears members’ policies and regulations that pursue a genuine environmental end will be supported by the WTO legal framework. The second GATT exception that can be said to pursue environmental values is in Article XX of the GATT in paragraph (g). This exception provides that for a Member to justify a provision under this Article it must satisfy the following three requirements: • the measure must ‘relate to’ conservation; • the conservation must be of an exhaustible natural resource; and • the measure must be made effective with domestic restrictions.40 The requirement that a measure ‘relates to’ conservation requires that a relationship exists between the measure that otherwise breaches WTO obligations and the objective of the exception.41 This places a degree of importance on the policy objective of the domestic measure.42 The Appellate Body made this clear in the US–Shrimp dispute. In this case they noted that for a measure to ‘relate to’ conservation, a reasonable ‘means and ends’ relationship must exist.43 The Canada – Unprocessed Herring and Salmon dispute further clarified the meaning of the phrase ‘relate to’.44 The Panel for this dispute concluded that while a trade measure did not have to be ‘necessary’ or ‘essential’ to the conservation of an exhaustible natural resource, it had to be ‘primarily aimed at’ the conservation of an exhaustible natural resource in order for it to ‘relate to’ conservation within the meaning of Article XX (g).45 It follows that the phrase ‘relate to’ is used interchangeably with ‘primarily aimed at’.46 In regards to the second requirement, commentary of the Appellate Body in the US–Shrimp dispute provides a clear summary of the understanding of ‘natural resources’ for the purposes of Article XX (g).47 In this dispute the Appellate Body stated that, ‘we note that the generic term “natural resources” in Article XX (g) is not “static” in its content or reference but is rather “by definition, evolutionary”’.48 The Appellate Body then went on to explain that it must interpret the term ‘exhaustible’ in light of ‘contemporary concerns of the community of nations in regards to the protection and conservation of the environment’.49 It follows that the conservation of the 39 Christopher Tran, ‘Using Gatt, Art XX to Justify Climate Change Measures in Claims under the WTO Agreements’, Environmental and Planning Law Journal 27 (2010): 346, 51. 40 Van Den Bossche, The Law and Policy of the World Trade Organization, 634. 41 WTO Analytical Index: Guide to WTO Law and Practice, 277. 42 WTO Appellate Body, ‘Report: United States – Import Prohibition of Certain Shrimp and Shrimp Products’ (quoted in WTO Analytical Index: Guide to WTO Law and Practice (Cambridge University Press, 2 ed., 2007): 279. 43 Ibid., 141–42 (quoted in WTO Analytical Index: Guide to WTO Law and Practice, 279). 44 GATT Panel, ‘Report: Canada – Measures Affecting Exports of Unprocessed Herring and Salmon’ (GATT BISD 35S/ 98, 22 March 1988). 45 Ibid., 4.6. 46 WTO Analytical Index: Guide to WTO Law and Practice, 630. 47 WTO Appellate Body, ‘Report: United States – Import Prohibition of Certain Shrimp and Shrimp Products’. 48 Ibid., 130. 49 Ibid. (cited in WTO Analytical Index: Guide to WTO Law and Practice, 276).

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atmosphere will fall within the scope of conservation of an exhaustible natural resource. Support for this proposition is also found in the US–Gasoline dispute.50 In this dispute, the Appellate Body declared clean air an ‘exhaustible natural resource’ within the meaning of Article XX (g).51 As per the above discussion there is little doubt that the mitigation of climate change justifies the use of one of these exception provisions. However, there is another requirement that must be satisfied in order to rely on these exception provisions. This presents Members with another criterion for each of the Article XX exceptions. This requirement is contained with the chapeau.52 The chapeau of Article XX states: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.53

In the Shrimp–Turtle dispute,54 questions arose in regards to the operation of the chapeau. In this case, the Appellate Body declared that measures that were implemented for the protection of sea turtles from shrimp fishing were justified under the paragraph (g) exception. However, the measures were deemed invalid because of discrimination between the Members to which it applied. The respondent Member could not justify this discrimination and therefore the measure failed to satisfy the obligations of the chapeau. This determination by the panel means that regardless of the values that underpin the measures, they must support the PIJ of the WTO, which includes the desire to eliminate discrimination in international trade. It would appear that this was the reason for the decision here. On the basis of the above paragraphs one may argue that core environmental values, in particular sustainable development, are indeed considered in the pursuit of the objectives of the GATT. However, the GATT exception provisions can only be used to excuse any measures that breach the GATT obligations, they do not go so far as to excuse breaches of other ‘covered agreements’. As the GATT is only one agreement that is part of this institution’s regulatory framework, it would be premature to conclude that the WTO generally aligns their values with those of multilateral environmental agreements in general, nor with the global carbon regime specifically. In order to decide this on a practical level it would be necessary to examine all the covered agreements and the exceptions contained therein. I do not propose to do that here. Rather this chapter now turns to the second value noted in the preamble. That is, the requirement to maintain consistency with members’ different economic needs.

50 ‘Report: United States – Standards for Reformulated and Conventional Gasoline’ (WT/DS2/AB/R, 29 April 1996). 51 In this particular dispute the measure in question was not justified under paragraph (g) because the Panel concluded that ‘the less favourable baseline establishments methods’ used by the measure were not primarily aimed at the conservation of exhaustible natural resources and thus fell outside the scope of Article XX (g). 52 This approach has been followed by subsequent dispute settlement panels and the Appellate Body. See, for example, WTO Appellate Body, ‘Report: European Communities – Measures Affecting Asbestos and Asbestos Containing Products’ (WT/DS135/AB/R, 2001). 53 General Agreement on Tariffs and Trade (hereinafter GATT). 54 ‘Report: United States – Import Prohibition of Certain Shrimp and Shrimp Products’.

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Different Economic Needs and Common but Differentiated Responsibility The second value that demonstrates a degree of context consistency between the WTO and the global carbon regime is the requirement to take the different economic needs of member nations into consideration. Commentators have translated this requirement to mean the WTO agreements must adhere to the principle of CBDR.55 The words of the Preamble provide a clear link to this international principle. That is, member states must seek ‘to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development’.56 The articulation of this principle in the WTO Preamble can indeed be compared to the Preamble of the United Nations Framework Convention on Climate Change (UNFCCC) which requires parties respond to climate change in accordance with their ‘common but differentiated responsibilities, respective capabilities and their social and economic conditions’.57 The principle of CBDR is derived from concepts of equity and fairness in international law.58 This principle recognizes the importance of sharing in the responsibility for environmental protection but considers that this responsibility does not fall evenly on every nation-state.59 This differential in responsibility acknowledges different economic capabilities and different contributions to the problem itself. Thus, this principle aligns with concepts of justice and fairness in as far as environmental preservation is concerned. In the context of the WTO requirement to adhere to ‘special economic needs of developing countries’, obligations extend beyond the differential in relation to environmental considerations. This is demonstrated throughout the covered agreements and in particular in Part IV of the GATT. This part of the agreement effectively sets a different standard to be maintained in order to ensure continued economic growth for developing country parties. In theory at least, this agreement maintains that raising the standards of living and the development of all nation-states that are parties to the agreement is one of the objectives to be pursued.60 Within this part of the agreement developed country parties forgo the right to reciprocity in relation to negotiated tariff reductions.61 I would argue that this extension of CBDR enables a broader consideration of the principles of justice in fairness in the pursuit of the PIJ of the WTO. Although the principle or value acknowledged in the Preamble to the WTO agreement does not use the specific word phrase ‘common but differentiated responsibilities’ it has been acknowledged in the settlement of WTO disputes in reference to the protection of the environment. In particular the Panel in the US–Shrimp Panel acknowledged that ‘States have a common but 55 Morosini, ‘Trade and Climate Change: Unveiling the Principle of Common but Differentiated Responsibilities from the WTO Agreements’, 718. 56 Ibid. ‘Marrakesh Agreement Establishing the World Trade Organization’. 57 ‘United Nations Framework Convention on Climate Change: Resolution/Adopted by the General Assembly’ (A/RES/48/189, 20 January 1994); ‘Trade and Climate Change: Unveiling the Principle of Common but Differentiated Responsibilities from the WTO Agreements’. 58 Barbara Buchner and Janna Lehmann, ‘Equity Principles to Enhance the Effectiveness of Climate Policy: An Economic and Legal Perspective’, in Climate Change Policy, ed. Michael Bothe and Eckard Rehbinder (Utrecht: Eleven International Publishing, 2005): 47. 59 Morosini, ‘Trade and Climate Change: Unveiling the Principle of Common but Differentiated Responsibilities from the WTO Agreements’. 60 ‘Marrakesh Agreement Establishing the World Trade Organization’, Article XXXVI 1(a). 61 Jeanne J. Grimmett, Trade Preferences for Developing Countries and the World Trade Organization (WTO) (Washington: Congressional Research Service, 2011).

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differentiated responsibility to protect and preserve the environment’.62 The acknowledgement in the dispute settlement report provides further evidence that this important principle of international environmental law is applicable in the context of the WTO. In this respect, the WTO rules recognize the need for cooperation in environmental objectives, but at the same time considers the contribution parties have made to the environmental problem and acknowledges each nation-states’ relative ability to address those problems. In this respect, the recognition of CBDR represents a second alignment of the values of the WTO with the international climate change regime. The World Trade Organization Values and Objectives Concluding Comments The WTO recognizes sustainable development and the need to maintain consistency in accordance with the different economic needs of the parties. The WTO has demonstrated some consistencyintegrity in relation to these values when we analyse certain dispute settlement reports, however, it would be necessary to conduct a more thorough dispute settlement report analysis to draw this conclusion with more certainty. It is outside the scope of this chapter to do so, but it is suggested that there is a need to hold institutions such as the WTO to account in this regard. Despite this observation, the objective of this publication is not the consistency-integrity of the WTO but the institutional integrity of the global carbon regime. To maintain consistency with this theme we must analyse how the values noted here, which are part of the PIJ of free and nondiscriminatory trade, align with the values and objectives of the carbon regime. If this is in contrast to the values of the global carbon regime then clearly it would be impossible to suggest that this regime demonstrates context-integrity if it is accepted that the WTO is a part of the regime’s external environment. The next section of this chapter addresses this question. The Context-Integrity of the Climate Change Regime Previously in this chapter I have examined the values that underpin the PIJ of the WTO. These values demonstrate context-integrity with the international climate change regime to a certain degree. It is difficult to argue that the principle of sustainable development represents a clear alignment between the institutions in this respect. This is not to suggest that the WTO demonstrates consistency-integrity with this value. However, it is a value that is recognized by the WTO and in this regard it demonstrates context-integrity with multilateral environmental agreements to an extent. The second value noted here is that of CBDR. Above I have noted that this principle can be inferred from the WTO agreement Preamble and from Part IV of the GATT. In as far as the global carbon framework is concerned, it acknowledges the importance of this principle throughout the agreements63 and it has been relied on throughout climate negotiations. Therefore if we accept that this value or principle is a part of the WTO institutional framework then again some contextintegrity is demonstrated. As mentioned throughout this chapter it is not the purpose here to argue that the global climate framework displays consistency-integrity with this principle, but rather that evidence of context-integrity exists. 62 WTO Panel, ‘Report: United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia’ (Wt/Ds58//Rw, 2001). 63 ‘United Nations Framework Convention on Climate Change: Resolution/Adopted by the General Assembly’, Preamble, Article 3, Article 4; ‘The Kyoto Protocol to the United Nations Framework Convention on Climate Change’ (37 ILM 22, Article 10, 1998): Article 10.

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In order to answer the question of the context-integrity of the global carbon regime in relation to the WTO it is important to demonstrate that the WTO aligns with the global climate regime, but also that the global carbon regime aligns with the WTO. Therefore, we must consider whether the policy objectives of the WTO are reflected in the values of the regime. This is not to say that in the interests of fairness and justice that these values and objectives must be considered by the global climate regime, but rather that for this regime to demonstrate context-integrity it is necessary that they are taken into consideration in pursuit of international climate change policy goals. One may claim that the PIJ of the international climate change regime is contained in Article 2 of the UNFCCC.64 The objective articulated in Article 2 requires parties to prevent dangerous anthropogenic interference with the climate system by stabilizing GHG concentrations in the atmosphere. The pursuit of this objective was bolstered with the drafting of the Kyoto Protocol to the UNFCCC (the Kyoto Protocol).65 The Kyoto Protocol provided quantified emissions targets for developed nations, using a base year and a percentage of allowable increase or decrease. Although the Kyoto Protocol does not provide details of how these emission targets should be achieved, it does include ‘flexible mechanisms’ for parties to enable these target cuts to be met. Of these flexible mechanisms, perhaps the most significant is the introduction of international emissions trading.66 In addition to introducing the world to the possibility of tradable emission rights – which have a financial value – the Kyoto Protocol also required that any market imperfections, which would be contrary to the objective of the Convention, be progressively corrected.67 These inclusions effectively acknowledged the importance of economic theory and markets within these environmental agreements. When we consider the mechanisms of the Kyoto Protocol and the UNFCCC it is reasonably straightforward to argue that these agreements appear to support the mitigation of climate change through, amongst other means, pricing GHG emissions. This therefore recognizes the importance of international trade by the nature of these mechanisms. The international emissions trading mechanism is indeed designed to enable cooperation and trade between participating nation-states, just as the WTO requires. Thus through the introduction of these mechanisms and the desire for economic efficiency there is a degree of context-integrity demonstrated. In support of this argument, these multilateral climate agreements explicitly recognize that the desired environmental objectives should not be achieved in a way that compromises the pursuit of free international trade. For example the UNFCCC notes that: Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.68

Following this, the Kyoto Protocol specifies that any measures implemented should be done in a way that will minimize the impacts on international trade:

64 ‘United Nations Framework Convention on Climate Change: Resolution/Adopted by the General Assembly’, Article 3.4. 65 ‘The Kyoto Protocol to the United Nations Framework Convention on Climate Change’. 66 Ibid., Article 17. 67 Ibid., Article 2.1 (v). 68 ‘United Nations Framework Convention on Climate Change: Resolution/Adopted by the General Assembly’, Article 3.5.

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The Parties included in Annex I shall strive to implement policies and measures under this Article in such a way as to minimize adverse effects, including the adverse effects of climate change, [and] effects on international trade …69

For this reason, it is suggested that the WTO agreement and the global carbon regime include objectives that link and acknowledge each other’s legal arrangements, values and objectives, demonstrating an alignment between them. Thus, in theory at least, the global carbon regime as an institution can claim to demonstrate a degree of context-integrity in as far as the WTO is concerned. Conclusion Principles of international law should not have to be articulated in the agreements themselves in order to be read into the requirements of international agreements. Rather all international agreements should automatically align with the international principles that are relevant to their subject matter. However, given the complexities and the plethora of principles that exist in the international legal framework, it is important that within agreements there is an emphasis on the principles that underpin the policy objectives of the agreement in question. Here I have considered the WTO agreements and the global carbon regime to determine if these underpinning principles align and therefore whether the global carbon regime can claim to maintain context-integrity, at least in so far as the WTO is concerned. The principle of sustainable development clearly appears in both legal frameworks and represents a unifying principle, at least theoretically. Indeed this principle appears to be of some importance in the WTO agreements, however the balance that this principle requires in the context of the WTO may differ from that of the global carbon regime. In this respect, it is important that we acknowledge the evolution of the WTO agreement interpretations since the GATT was first conceived in 1947. The trend, although positive, may not have shifted enough to genuinely address some of the global environmental issues, but it has shifted nonetheless. The principle of CBDR, although not stated plainly in the WTO agreements, can be read into the requirements as articulated in the Preamble to the WTO agreement. This is in contrast to its clear reference in the international climate change agreements. Despite this contrast, the alignment of values is evident although, as noted is this chapter, a thorough analysis of the consistencyintegrity has not been conducted in this regard. Finally, within this chapter an overview of the global carbon regime agreements demonstrates that the concepts of free and non-discriminatory international trade are acknowledged. This therefore demonstrates that the two institutional arrangements do demonstrate some contextintegrity in relation to each other. This is one very small part of the institutional integrity of the global carbon regime, however the alignment with the external environment is a crucial aspect of maintaining this integrity. The analysis conducted in this chapter does not end this matter entirely. As noted throughout this chapter, other aspects of integrity must be demonstrated in order to claim that an institution maintains integrity, even in the limited sense as considered within this chapter. As such, demonstrated here are the complexities associated with integrity, and the importance of institutional awareness in formulating objectives, policies and values. The final point I would like to make in this chapter is one that does not necessarily accord directly with the subject matter explicitly examined, and to a large extent has been ignored until 69 ‘The Kyoto Protocol to the United Nations Framework Convention on Climate Change’, Article 2.3.

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this point. That is, international institutions such as the WTO and the global carbon regime may demonstrate an alignment of values but the question remains whether this alignment will indeed promote either of the institutional justifications. Certainly there is some concern that the continued pursuit of development globally may render the goals of the global carbon regime unattainable. Therefore, although the alignment of values demonstrated here is an observation we may view as positive, we must qualify this sentiment with the thought that continued global development as a value or an objective may need revisiting. Rather international institutions may need to place importance on the value of distributive justice. Therefore, one may suggest that to achieve meaningful environmental ends institutions may need to position the value of the redistribution of wealth above the pursuit of continued economic growth.

PART II Ethics in a Dynamic and Decentralized World

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Chapter 7

Top-Down Proposals for Sharing the Global Climate Policy Effort Fairly: Lost in Translation in a Bottom-Up World? Jonathan Pickering1

Introduction Achieving a global agreement to address climate change that is effective, equitable and politically feasible is often viewed as the holy grail of climate policy.2 Agreement on how countries will share the collective effort of reducing global greenhouse gas (GHG) emissions is vital to ensuring the climate regime’s consistency-integrity; that is, the extent to which the actions of parties to the United Nations Framework Convention on Climate Change (UNFCCC; or ‘the Convention’) are consistent with its stated public institutional justification (PIJ) of avoiding dangerous climate change.3 Many scholars, governments and civil society advocates have devised proposals for distributing national responsibilities for tackling climate change. Some of the best-known of these are ‘topdown’ proposals that use a common formula or set of rules to calculate national responsibilities for all countries. Yet no single proposal has secured widespread acceptance to date. Instead, recent UN negotiations have moved towards a more ‘bottom-up’ approach whereby countries have greater latitude to frame their emissions reduction (‘mitigation’) contributions according to their national circumstances.4 Thus the question arises as to whether there is a fundamental mismatch between top-down proposals and the bottom-up reality of the climate regime. 1 I would like to thank Eliza Murray, Erik Haites and the editors for helpful comments on a draft of this chapter. I also appreciated feedback on a presentation based on this chapter from participants at the workshop on the values informing the Integrity System of the Global Climate Regime (Brisbane, November 2014). Many of the ideas outlined here were formed while tutoring a course on international climate policy and economics at the Australian National University between 2011 and 2014. I am grateful to my students and the course lecturer, Stephen Howes, for many stimulating discussions about the merits of top-down and bottom-up approaches. This research was supported under Australian Research Council’s Laureate Fellowship funding scheme (project number FL140100154). 2 Massimo Tavoni, Shoibal Chakravarty, and Robert Socolow, ‘Safe Vs. Fair: A Formidable Trade-Off in Tackling Climate Change’, Sustainability 4, no. 2 (2012). See also Jonathan Pickering, Steve Vanderheiden, and Seumas Miller, ‘“If Equity’s in, We’re Out”: Scope for Fairness in the Next Global Climate Agreement’, Ethics and International Affairs 26, no. 4 (2012). 3 UNFCCC, ‘United Nations Framework Convention on Climate Change’ (1992): Article 2. I take an institution’s PIJ to be its stated purpose or justification for its existence or activities. An institution has consistency-integrity if its actions are consistent with its PIJ. For further discussion of these terms, see Chapter 2 in this volume. 4 David G Victor, ‘Copenhagen II or Something New’, Nature Climate Change 4, no. 10 (2014). In accordance with prevailing UNFCCC terminology (which reflects the reluctance of many developing countries

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While there is a growing literature on top-down and bottom-up proposals (as I outline below), significant analytical gaps remain. First, discussions about the relative merits of top-down and bottom-up proposals often work with a limited set of evaluative criteria that gives inadequate weight to considerations of procedural equity. Second, while researchers are increasingly exploring ‘hybrid’ options for climate policy that combine elements of bottom-up and top-down proposals, there has been little systematic analysis of other ways that top-down proposals could influence climate policy. As a result, our understanding remains limited about the variety of channels through which principles of distributive equity – which are foregrounded in top-down proposals – may influence climate policy. In this chapter I aim to help address these gaps by arguing for a more nuanced perspective on the top-down/bottom-up debate. I begin by defining what I mean by ‘top-down’ and ‘bottom-up’ and by identifying a provisional set of criteria for evaluation. I then articulate in greater detail the feasibility constraints that render it very difficult, if not impossible, to translate top-down proposals directly into practice in a bottom-up negotiating environment. I then argue that there are good theoretical reasons for appealing to a broader range of values in thinking about how national efforts should be distributed. In particular, in addition to effectiveness, feasibility and distributive equity, considerations of procedural equity are important. Top-down proposals frequently provide less clarity than bottom-up proposals on how procedural equity could be assured. This suggests that a hybrid approach may be better suited to advancing both distributive and procedural values simultaneously. The latter part of the chapter focuses on the more specific and less explored question of whether standalone top-down proposals might still exert some practical influence under a hybrid or bottom-up regime. Drawing on theories of the influence of advocacy networks in international relations, I argue that top-down proposals can help to advance consistency-integrity as well as context-integrity (which relates to the role of external actors in helping the climate regime to fulfil its PIJ) by functioning as a source of equity benchmarks for official deliberation and civil society advocacy. Analytical Framework Defining ‘Top-Down’ and ‘Bottom-Up’ The distinction between top-down and bottom-up approaches to climate policy may apply to several dimensions of the climate regime, including its legal stringency and universality of participation.5 For present purposes I will focus on the distinction between proposals that apply a common formula or distributive rule6 for all countries’ contributions (top-down) and those that give greater latitude to countries to frame their contributions unilaterally in the absence of a common formula (bottom-up). Typically top-down proposals imply greater multilateral centralization of to adopt binding ‘pledges’ or ‘commitments’ on the same footing as developed countries), I refer to national mitigation efforts inscribed in international climate agreements generically as ‘contributions’ or ‘efforts’. 5 William Hare et al., ‘The Architecture of the Global Climate Regime: A Top-Down Perspective’, Climate Policy 10, no. 6 (2010). 6 In addition to proposals that that combine multiple distributive principles into a single formula, a top-down approach could also involve what Edward A. Page calls a ‘conjunctive’ account that applies several distributive principles sequentially. See Edward A. Page, ‘Climatic Justice and the Fair Distribution of Atmospheric Burdens: A Conjunctive Account’, The Monist 94, no. 3 (2011).

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authority, while bottom-up proposals vest a greater degree of authority in national governments.7 The top-down/bottom-up debate in climate policy finds some parallels in debates about how best to structure arrangements for ensuring institutional integrity: whether through a central oversight institution or through a web or ‘bird’s nest’ of institutions whose interactions serve to promote ‘horizontal’ rather than top-down accountability.8 While the evaluation that follows does not assess individual proposals in detail, the comparisons I draw between top-down and bottom-up proposals are intended to be broadly reflective of a range of well-known proposals in each category. Top-down approaches widely cited in academic literature and policy analysis include: those based on the idea of equal per capita emissions allowances, such as the Contraction and Convergence proposal;9 and the Greenhouse Development Rights framework, which calculates countries’ responsibilities based on indicators of national emissions and income, adjusted for intra-country inequalities.10 Importantly, many proposals in the scholarly literature on climate ethics are best characterized as top-down as they envisage formulaic or rulebased approaches to effort-sharing.11 Thus debates about the advantages and shortcomings of topdown proposals also speak to broader questions of whether and how scholarly accounts of equity or justice in climate change could be translated into public policy. Among the better-known bottomup proposals are: those by William Pizer and David Victor; Sustainable Development Policies and Measures (SD-PAMS), which involves a bottom-up approach for developing countries; the ‘Nationally Appropriate Mitigation Actions’ approach initiated under the UNFCCC’s 2009 Copenhagen Accord, which builds on the SD-PAMs approach in a number of respects; and Australia’s ‘schedules’ proposal.12 7 Robert Stavins et al., ‘International Cooperation: Agreements and Instruments’, in Climate Change 2014, Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) (Cambridge, UK; New York, NY: Cambridge University Press, 2014): 13. 8 Jeremy Pope, Confronting Corruption: The Elements of a National Integrity System (Berlin: Transparency International, 2000): 34; Charles Sampford, Rodney Smith, and Alexander Jonathan Brown, ‘From Greek Temple to Bird’s Nest: Towards a Theory of Coherence and Mutual Accountability for National Integrity Systems’, Australian Journal of Public Administration 64, no. 2 (2005). 9 Aubrey Meyer, ‘The Kyoto Protocol and the Emergence of “Contraction and Convergence” as a Framework for an International Political Solution to Greenhouse Gas Emissions Abatement’, in Man-Made Climate Change, ed. Olav Hohmeyer and Klaus Rennings, ZEW Economic Studies (Heidelberg: Physica, 1999). 10 Paul Baer et al., ‘Greenhouse Development Rights: Towards an Equitable Framework for Global Climate Policy’, Cambridge Review of International Affairs 21, no. 4 (2008); and Brazil’s Historical Responsibility proposal (UNFCCC, ‘Implementation of the Berlin Mandate, Additional Proposal by Parties’ (1997). 11 See for example, Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change (New York: Oxford University Press, 2008); Simon Caney, ‘Just Emissions’, Philosophy and Public Affairs 40, no. 4 (2012). 12 William A. Pizer, ‘Practical Global Climate Policy’, in Architectures for Agreement: Addressing Global Climate Change in the Post-Kyoto World, ed. Joseph E. Aldy and Robert N. Stavins (Cambridge, UK: Cambridge University Press, 2007); David G. Victor, ‘Fragmented Carbon Markets and Reluctant Nations: Implications for Design of Effective Mechanisms’, in Architectures for Agreement: Addressing Climate Change in the Post-Kyoto World, ed. Joseph E. Aldy and Robert N. Stavins (Cambridge, UK: Cambridge University Press, 2007); Rob Bradley, Kevin A. Baumert, and Navroz K. Dubash, Growing in the Greenhouse: Protecting the Climate by Putting Development First (Washington, DC: World Resources Institute, 2005); Copenhagen Accord, Paragraph 5; Australia, ‘Schedules in a Post 2012 Treaty’ (Bonn: UNFCCC, 2009).

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Criteria for Evaluation The two most recent assessment reports of the Intergovernmental Panel on Climate Change (IPCC) illustrate a common approach to assessing the merits of top-down and bottom-up proposals. The IPCC’s Fifth Assessment Report (AR5) uses four criteria to evaluate forms of international cooperation: environmental effectiveness, aggregate economic performance, distributional and social impacts, and institutional feasibility.13 The four criteria may be understood together as necessary if not sufficient conditions for the consistency-integrity of a mitigation policy, assessed against the objectives of the Convention. I begin by focusing on two criteria where the contrast between the two types of proposal is most evident – distributional and social impacts, and institutional feasibility – before supplementing this account with an evaluation of procedural equity. Distributional and social impacts include considerations of distributional or distributive equity (and for present purposes I refer to this criterion as ‘distributive equity’), which the IPCC defines as relating to ‘burden- and benefit-sharing across countries and across time’.14 Policies have a high degree of institutional feasibility if they are ‘well adapted to existing institutional constraints’ and ‘take political realities into account’.15 The AR5 outlines several sub-criteria for institutional feasibility: the extent to which the policy can secure the objectives of (i) participation; (ii) compliance and (iii) legitimacy; and (iv) the policy’s flexibility.16 Distributive Equity v. Institutional Feasibility The Translation Problem Proponents of top-down approaches generally consider them to be both effective and equitable as the approaches derive national contributions from widely accepted moral and legal principles, and because national contributions add up to a level of collective effort necessary to avoid dangerous climate change.17 For example, proposals such as Greenhouse Development Rights explicitly seek to translate the Convention’s principle of parties’ ‘common but differentiated responsibilities and respective capabilities’ (UNFCCC, Article 3.1) into quantitative indicators based on national 13 Stavins et al., ‘International Cooperation: Agreements and Instruments’, 1006. These criteria are modelled on those in S. Gupta et al., ‘Policies, Instruments and Cooperative Arrangements’, in Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) (Cambridge, UK; New York, NY: Cambridge University Press, 2007): 751–52. 14 Stavins et al., ‘International Cooperation: Agreements and Instruments’, 1009. 15 Gupta et al., ‘Policies, Instruments and Cooperative Arrangements’, 752. For a more nuanced philosophical analysis of the idea of political feasibility, see Pablo Gilabert and Holly Lawford-Smith, ‘Political Feasibility: A Conceptual Exploration’, Political Studies 60, no. 4 (2012). 16 Stavins et al., ‘International Cooperation: Agreements and Instruments’, 1009. Unless otherwise specified I will evaluate proposals against these criteria on the assumption that ‘non-ideal’ circumstances prevail: that actors face epistemic constraints and have limited motivation to comply with moral requirements, and that institutions are subject to path dependencies, which makes reform challenging but not necessarily impossible. Laura Valentini, ‘Ideal Vs. Non-Ideal Theory: A Conceptual Map’, Philosophy Compass 7, no. 9 (2012). 17 Baer et al., ‘Greenhouse Development Rights: Towards an Equitable Framework for Global Climate Policy’, 652.

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emissions and income. Advocates of bottom-up approaches do not always dispute the distributive equity of top-down proposals or their effectiveness under ideal circumstances but frequently argue that the Achilles’ heel of top-down approaches is their lack of institutional feasibility.18 Judgements about feasibility are inevitably specific to particular time periods. A reform that appears unfeasible at one point in time may become feasible at a later time, and vice versa.19 Thus Paul Baer argues that top-down approaches may influence policy by ‘asking what is fair in the hopes that it might change what is feasible’.20 But, whatever else we may conclude about the relative merits of top-down and bottom-up proposals, the feasibility criticism has some bite, at least for medium-term horizons for policy-making, as Baer concedes.21 The US and numerous other (mostly developed) countries remain reluctant to contemplate the use of formulae for sharing climate change mitigation efforts. There are several possible reasons why top-down approaches to global climate policy continue to face opposition. First, the overall costs of mitigation are considerably higher than those of other collective efforts where countries have agreed on a common formula.22 Second, whereas for some collective efforts the most relevant basis for effort-sharing is a country’s capacity to pay, in the climate change context this is complicated by additional factors, including varying degrees of responsibility for past and current emissions. Survey data suggest that there is reasonably strong support among climate change negotiators from both developing and developed countries for principles such as ‘polluter pays’, but levels of support for other principles vary across countries and time horizons.23 This highlights a more general concern that countries hold diverse and often apparently irreconcilable conceptions of what a fair distribution of effort requires.24 A final reason involves the institutional path along which the climate regime has evolved.25 Under the Convention, national responsibilities have been differentiated traditionally according to a binary categorization of developed and developing countries. While developing countries have supported the idea that developed countries should share their efforts according to a common formula, they have resisted the idea that developing countries themselves should be subject to the same formula. Developing countries have supported this claim by invoking the principle in the Convention that developed countries should ‘take the lead’ on protecting the climate system.26

18 See for example Steve Rayner, ‘How to Eat an Elephant: A Bottom-up Approach to Climate Policy’, Climate Policy 10, no. 6 (2010): 616. 19 Gilabert and Lawford-Smith, ‘Political Feasibility: A Conceptual Exploration’, 821. 20 Paul Baer, ‘The Greenhouse Development Rights Framework for Global Burden Sharing: Reflection on Principles and Prospects’, Wiley Interdisciplinary Reviews: Climate Change 4, no. 1 (2013): 67. 21 Ibid. 22 See Scott Barrett, Why Cooperate? The Incentive to Supply Global Public Goods (Oxford: Oxford University Press, 2007). For a comparison of costs see Jonathan Pickering, Frank Jotzo, and Peter J. Wood, ‘Splitting the Difference: Can Limited Coordination Achieve a Fair Distribution of the Global Climate Financing Effort?’, Global Environmental Politics 15, no. 4 (2015). 23 A. Lange, C. Vogt, and A. Ziegler, ‘On the Importance of Equity in International Climate Policy: An Empirical Analysis’, Energy Economics 29 (2007): 557. 24 Aaditya Mattoo and Arvind Subramanian, ‘Equity in Climate Change: An Analytical Review’, World Development 40, no. 6 (2012). 25 Joanna Depledge, ‘The Opposite of Learning: Ossification in the Climate Change Regime’, Global Environmental Politics 6, no. 1 (2006). 26 UNFCCC, Article 3.

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The Shift Towards a Bottom-Up Approach In view of the difficulties associated with implementing top-down approaches to effort-sharing, the climate regime has moved increasingly towards a bottom-up or ‘pledge-and-review’ approach that has favoured expanding the participation of developing countries over arriving at a universally agreed formula. The need for securing the involvement of developing countries has become increasingly urgent as developing countries’ emissions now outweigh those of developed countries as a share of global emissions, even though the average per capita emissions of the former group remain below those of the latter.27 The 2009 Copenhagen Accord (whose key elements were subsequently formalized in the 2010 Cancún Agreements) marked a turning point towards a more bottom-up approach. Whereas under the Kyoto Protocol only developed countries submitted targets according to a common metric, the Copenhagen/Cancún approach called upon both developed and developing countries to announce national commitments or actions, albeit in somewhat different formats for each group, with countries having considerable latitude over how they framed their efforts. In addition to commitments by 42 developed countries, a further 55 developing countries – including large emerging economies such as China, India, Brazil, Indonesia and South Africa – also announced ‘nationally appropriate mitigation actions’.28 At the time of writing, countries are negotiating a longer-term agreement that is due to be reached at the UN climate conference in Paris in late 2015. With the negotiating text still in flux at the time of writing,29 it remains unclear precisely how bottom-up or top-down the agreement will be, but it seems relatively clear that countries will not agree to a common formula for effortsharing.30 Recent decisions under the UNFCCC and other analysis suggest that the agreement is likely to involve a modified version of the Copenhagen/Cancún approach, that is, bottom-up pledge-making complemented by some kind of review and transparency mechanisms.31 Countries have already agreed to submit ‘intended nationally determined contributions’ (INDCs) in advance of the Paris conference.32 As outlined in the section on procedural equity below, recent UNFCCC decisions have also established some foundations for publicizing and reviewing contributions. Procedural Equity Thus far the bottom-up v. top-down debate appears to reflect a tension common in political philosophy between ‘ideal’ visions of what is equitable, fair or just, and ‘non-ideal’ conceptions of how these values might be advanced if not completely fulfilled under real-world political

27 PBL, ‘Trends in Global CO2 Emissions: 2013 Report’ (Amsterdam: PBL Netherlands Environmental Assessment Agency, 2013). 28 Stavins et al., ‘International Cooperation: Agreements and Instruments’, 33. 29 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), ‘Implementation of All the Elements of Decision 1/CP.17: Negotiating Text’ (Bonn: UNFCCC, 2015). 30 Victor, ‘Copenhagen II or Something New’. 31 Lavanya Rajamani, ‘The Warsaw Climate Negotiations: Emerging Understandings and Battle Lines on the Road to the 2015 Climate Agreement’, International and Comparative Law Quarterly 63, no. 03 (2014); Steinar Andresen, ‘International Climate Negotiations: Top-Down, Bottom-up or a Combination of Both?’, The International Spectator 50, no. 1 (2015): 28. 32 UNFCCC, ‘Lima Call for Climate Action’, Decision 1/CP.20 (2014): para. 9.

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constraints.33 But importantly, equity may concern not only distributive outcomes (or substantive values) but also decision-making processes. The principle of equity in international environmental law has important procedural as well as distributive dimensions.34 Political philosophers frequently emphasize that procedural justice is not only instrumentally important in advancing outcome-based justice but also intrinsically important, not least because it constitutes a form of respect for the autonomy and dignity of individuals.35 As noted above, consistency-integrity will often require at a minimum fulfilling the substantive values embedded in an institution’s PIJ, as in the Convention’s objective of avoiding dangerous climate change. However, analyses of institutional integrity often foreground procedural values as an essential means for achieving consistency-integrity.36 Despite procedural values having instrumental as well as intrinsic worth, both the IPCC’s typology and some analyses of top-down and bottom-up proposals collapse considerations of procedural equity into evaluations of feasibility. Procedural equity features in the IPCC criteria outlined above only under the heading of ‘procedural legitimacy’. Legitimacy, as the IPCC describes it, ‘depends on the shared understanding both that the substantive rules (outputs) and decision-making procedures (inputs) are fair, equitable, and beneficial, and thus that other regime members will continue to cooperate’.37 In the IPCC typology, legitimacy in turn is only a subcriterion of institutional feasibility. The understanding of legitimacy that the IPCC outlines here is ‘sociological’ in that it refers to whether those subject to a policy consider it justified, as opposed to a ‘normative’ understanding of legitimacy, which assesses whether there are good independent reasons for supporting a policy, irrespective of how it is perceived by the public.38 By subsuming legitimacy under a broader criterion of institutional feasibility, the IPCC’s taxonomy also suggests that legitimacy matters more as a means to achieving a feasible approach rather than for its own sake. By contrast, the IPCC’s criterion on distributional and social impacts adopts a normative rather than sociological perspective on distributional equity since it focuses on the actual rather than perceived equity of different policy options. In addition, the IPCC’s typology treats distributional equity as having independent value rather than as a means to securing feasibility. Considering procedural equity in its own right may prompt us to re-evaluate the merits of topdown and bottom-up proposals. Procedural equity encompasses a range of dimensions relevant for sharing mitigation efforts, among them accountability and transparency, participation of affected parties, and quality of deliberation. I briefly review top-down and bottom-up proposals against each of these dimensions.

33 See Valentini, ‘Ideal Vs. Non-ideal Theory: A Conceptual Map’, 2012; and Dominic Roser and Clare Heyward, Climate Justice in a Non-Ideal World (Oxford: Oxford University Press, Forthcoming, 2015). 34 Dinah Shelton, ‘Equity’, in Oxford Handbook of International Environmental Law, ed. Daniel Bodansky, Jutta Brunnée, and Ellen Hey (Oxford: Oxford University Press, 2007): 640–41, 60. 35 See Emanuela Ceva, ‘Just Procedures with Controversial Outcomes: On the Grounds for Substantive Disputation within a Procedural Theory of Justice’, Res Publica 15, no. 3 (2009): 193. 36 See, for example, Pope, Confronting Corruption: The Elements of a National Integrity System, 34; Sampford, Smith, and Brown, ‘From Greek Temple to Bird’s Nest: Towards a Theory of Coherence and Mutual Accountability for National Integrity Systems’. 37 Stavins et al., ‘International Cooperation: Agreements and Instruments’, 1010. Citations in original text removed. 38 Daniel Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, The American Journal of International Law 93, no. 3 (1999): 601.

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Participation In the IPCC’s taxonomy, the sub-criterion of participation assesses whether a given policy proposal encourages states to participate in an international agreement.39 However, when understood as a dimension of procedural equity, the idea of participation is considerably broader. In the climate policy context participation or inclusion requires at a minimum the representation in decisionmaking of those interests most affected by climate change and by measures to address climate change, including individual citizens and communities.40 At first blush, top-down proposals appear to fare better on participation as they generally involve universal participation in an effort-sharing framework. However, top-down proposals often simply take universal participation for granted, largely circumventing questions of how to ensure either the universal participation of all states or the participation of all affected citizens of those states. One partial exception is Benito Müller’s ‘preference score’ approach, which proposes a common formula based on indicators that are weighted according to a process whereby countries vote on their preferred indicator.41 However, as I argue elsewhere, the concern remains as to how countries could achieve consensus even on this approach, which still requires a relatively high degree of formalization relative to bottom-up approaches.42 A further concern is that, even if a country’s votes are weighted according to the size of its population (as Müller’s proposal envisages), citizens of countries with weak or absent democratic systems may have limited input into the vote that their government casts ostensibly on their behalf. The flexibility of bottom-up approaches in allowing countries to tailor contributions to their national circumstances and priorities is commonly cited as a reason for encouraging a broader range of countries to participate.43 Flexibility may also provide greater scope for public participation since it enables countries to frame their contributions in ways that are more meaningful to their citizens. However, two caveats apply. First, as with top-down proposals, the ability of individual citizens to participate in formulating national contributions will depend on the democratic quality of individual countries. Second, even if citizens can participate in formulating their own national contributions, they may have little say in reviewing the contributions of other countries under a bottom-up approach unless (as I elaborate below) such an approach is bolstered by a multilateral process enabling review of mitigation contributions. Accountability and Transparency Accountability in global climate policy requires at a minimum that citizens are able to hold collective agents (including governments, multilateral organizations and private firms) responsible for their

39 Stavins et al., ‘International Cooperation: Agreements and Instruments’, 1009. 40 Jouni Paavola, W. Neil Adger, and Saleemul Huq, ‘Multifaceted Justice in Adaptation to Climate Change’, in Fairness in Adaptation to Climate Change, ed. W Neil Adger, et al. (Cambridge, MA: MIT Press, 2006): 268. 41 Benito Müller, Justice in Global Warming Negotiations: How to Obtain a Procedurally Fair Compromise (Oxford: Oxford Institute for Energy Studies, 1999). 42 Pickering, Jotzo, and Wood, ‘Splitting the Difference: Can Limited Coordination Achieve a Fair Distribution of the Global Climate Financing Effort?’. 43 Pizer, ‘Practical Global Climate Policy’, 304; Daniel Bodansky and Elliot Diringer, Building Flexibility and Ambition into a 2015 Climate Agreement (Arlington, VA: Centre for Climate and Energy Solutions, 2014): 3.

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actions against the standards set by the Convention and related decisions under the Convention.44 Transparency requires that agents publicly disclose information that enables citizens to hold those agents to account.45 Accountability and transparency are central to ensuring consistency-integrity. By enabling internal and external actors to assess whether an institution is fulfilling its PIJ, these attributes can help to lend weight to and provide feedback on stakeholders’ demands for good institutional performance. Here I focus on accountability mechanisms internal to the UNFCCC; in the section on alternative modes of influence below I touch on external accountability mechanisms in the form of civil society advocacy. Accountability and transparency are strengths of top-down approaches, since a common formula specifies and provides a justification for each country’s effort. In contrast, the greater flexibility of bottom-up approaches may impede comparability of national efforts unless additional standards for information disclosure are in place. National contributions under the Copenhagen Accord provide evidence for this concern, as the wide range of formats in which countries were permitted to present their targets posed challenges for comparing and aggregating contributions.46 One improvement on transparency in the lead-up to the Paris agreement is that countries are required to submit for public circulation their intended contributions before the agreement is reached, rather than subsequent to the agreement (as occurred with most contributions associated with the Copenhagen Accord).47 The UNFCCC has also agreed on guidelines for information that should accompany national contributions ‘in order to facilitate clarity, transparency and understanding’,48 although these are not mandatory requirements. In addition, most bottom-up proposals also include an element of review (hence the frequent use of the term ‘pledge-and-review’ to describe bottom-up proposals), whereby national pledging is combined with a multilateral mechanism for comparing and assessing contributions. A review process could assess the adequacy of collective and individual efforts, either before or after countries have announced final contributions.49 Review processes are generally a less prominent feature of top-down proposals, ostensibly because the adequacy of collective and individual efforts is safeguarded by adherence to the effort-sharing formula. However, if top-down approaches were adopted in practice, they would still require review mechanisms to monitor whether nations are complying with their required efforts, and to assess the adequacy of the collective target and the appropriateness of effort-sharing parameters.

44 See Ruth W. Grant and Robert O. Keohane, ‘Accountability and Abuses of Power in World Politics’, The American Political Science Review 99, no. 1 (2005): 29; Frank Biermann and Aarti Gupta, ‘Accountability and Legitimacy in Earth System Governance: A Research Framework’, Ecological Economics 70, no. 11 (2011): 1857. 45 See Grant and Keohane, ‘Accountability and Abuses of Power in World Politics’, 39; Aarti Gupta, ‘Transparency in Global Environmental Governance: A Coming of Age?’, Global Environmental Politics 10, no. 3 (2010): 1. 46 Michel G.J. den Elzen, Andries F. Hof, and Mark Roelfsema, ‘The Emissions Gap between the Copenhagen Pledges and the 2°C Climate Goal: Options for Closing and Risks That Could Widen the Gap’, Global Environmental Change 21, no. 2 (2011): 733. 47 UNFCCC, ‘Lima Call for Climate Action’, paras 9, 16. 48 Ibid., para. 14 49 In the lead-up to the Paris agreement, the UNFCCC will produce a synthesis report on parties’ intended contributions to assess their ‘aggregate effect’ (ibid., para. 16), but apart from this no official ex ante review appears likely to take place.

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Quality of Deliberation Quality of deliberation – which could be seen as a means of achieving meaningful participation or in its own right as an aspect of procedural equity – involves communication characterized by (among other things) truthfulness, non-coercion and reciprocity.50 Top-down approaches possess some features associated with high-quality deliberation, including reciprocity, in that all countries are treated on an impartial footing and that national efforts are explicitly based on reasoned argument. But while some top-down approaches seek to incorporate only those principles that have attained widespread public acceptance,51 top-down approaches typically prescribe a single framework to which all countries would need to subscribe. In this way, top-down proposals may constitute a hypothetical outcome of deliberation that countries might agree to under ideal circumstances, but they rarely set out a process that would ensure that highquality deliberation resulting in a uniform agreement actually takes place. Alternatively, individual top-down proposals might be seen as inputs into a broader process of deliberation. This appears close to the view expressed by Edward A. Page in relation to the ‘conjunctive’ top-down proposal that he outlines. Page acknowledges that his account is not designed to replace a fair negotiation process amongst states concerning the future direction of global climate policy. Normative theorists are duty bound to participate in processes of clarification and conceptual development that underpin accounts of climate burden sharing. But the decision to adopt one method of burden sharing over another is ultimately a political decision.52 Page’s comment gives due recognition to the fact that top-down proposals inhabit a broader decision-making context. And he points to the important idea that a top-down proposal may arise from and encapsulate a prior process of high-quality deliberation among the originators of the proposal. Nevertheless, the concern remains that a preliminary phase of deliberation would be required even to reach consensus in multilateral negotiations to subject top-down proposals to proper scrutiny and debate, not merely in an open-ended fashion (as the UNFCCC has done from time to time)53 but with a view to reaching an authoritative decision that adopts one proposal or another. Thus, whether viewed as a hypothetical output of deliberation or as an input into a deliberative process, top-down proposals need to be supplemented by a further account of how they could be arrived at by a process of high-quality deliberation rather than being externally imposed. Given that choices about deliberative processes raise vital questions of procedural equity, those choices are not purely a matter for political decision but likewise warrant the attention of normative theorists. Basic versions of a bottom-up approach (such as the Copenhagen/Cancún arrangements) do not fare particularly well on the test of deliberative quality, since countries may simply issue contributions without a requirement to provide a justification for them. However, as noted above, most bottom-up proposals are accompanied by review mechanisms that may facilitate some degree of deliberation. More specifically, under some recent proposals each country would be required to justify why it considers its contribution to be a fair share of the collective effort.54 A recent 50 Hayley Stevenson and John S. Dryzek, Democratizing Global Climate Governance (Cambridge, UK: Cambridge University Press, 2014): 25. 51 See for example Page, ‘Climatic Justice and the Fair Distribution of Atmospheric Burdens: A Conjunctive Account’, 426–27. 52 Ibid., 430. 53 See for example UNFCCC, ‘Workshop on Equitable Access to Sustainable Development (AWGLCA 15)’, http://unfccc.int/meetings/bonn_may_2012/workshop/6658.php (access 19 May 2015). 54 Erik Haites, Farhana Yamin, and Niklas Höhne, ‘Possible Elements of a 2015 Agreement to Address Climate Change’, Carbon and Climate Law Review 3, no. 1 (2014): 4.

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UNFCCC decision encourages each country to set out how it ‘considers that its [INDC] is fair and ambitious, in light of its national circumstances, and how it contributes towards achieving the objective of the Convention’.55 This is potentially a welcome step towards improving the quality of deliberation in the UNFCCC, although providing this information remains optional and the quality of the information provided is yet to be seen at the time of writing. Taking Stock So far I have argued that there is merit in the argument that top-down proposals perform better on distributive equity than on institutional feasibility, while the converse holds for bottom-up proposals. Once we take into account the dimension of procedural equity, the nature of the tradeoffs between the two types of proposal becomes more complex, as neither proposal appears to be clearly superior on all aspects of procedural equity. While the formulaic aspect of top-down proposals offers greater transparency and accountability in principle, those proposals often lack well-articulated review processes. The diversity of national contributions presents an obstacle for the transparency of bottom-up approaches, although robust review mechanisms could help to compensate for this concern. Bottom-up proposals accompanied by review mechanisms may perform better than top-down proposals on the participation of affected parties, although both types of proposal remain vulnerable to democratic deficits at the national level. Top-down proposals frequently say little about how they could be adopted through high-quality deliberation, while bottom-up proposals appear to offer greater deliberative potential yet face the challenge of how to ensure that governments take this potential seriously. Even if we are able to reach a provisional evaluation of each type of proposal based on the criteria I have outlined, the concern remains as to whether seeking to compare bottom-up and top-down proposals on the basis of procedural as well as distributive equity is really a matter of comparing apples and oranges. Thus it simply may not be the role of top-down proposals to spell out a fair process for their adoption: perhaps top-down proposals are intentionally designed to be capable of adoption through a range of possible decision-making processes. Equally, it is difficult to evaluate the distributional equity of bottom-up proposals, since they aim explicitly to map out a process that vests authority for the distribution of efforts in the hands of national governments, rather than pre-empting governments’ decisions by means of a formulaic approach. For these reasons, a more comprehensive comparison of top-down and bottom-up proposals is likely to require modelling how they would operate under a range of plausible scenarios for decision-making (in the case of top-down proposals) or distributive outcomes (in the case of bottom-up proposals). At the same time, the incompleteness and shortcomings of each type of proposal suggests that a hybrid approach combining the strongest elements of each may be the most promising avenue for advancing equity and institutional feasibility simultaneously. Others have already advanced a range of hybrid proposals.56 Rather than compare these proposals in detail, in the remainder of the chapter I address a prior and as yet relatively unexplored issue, namely to identify the different ways through which top-down proposals could influence climate policy. 55 UNFCCC, ‘Lima Call for Climate Action’, para. 14. 56 See for example Haites, Yamin, and Höhne, ‘Possible Elements of a 2015 Legal Agreement on Climate Change’; Xolisa Ngwadla, ‘An Operational Framework for Equity in the 2015 Agreement’, Climate Policy 14, no. 1 (2013); Ottmar Edenhofer, Christian Flachsland, Robert Stavins, and Robert Stowe, Identifying Options for a New International Climate Regime Arising from the Durban Platform for Enhanced Action (Cambridge, MA: Harvard Project on Climate Agreements, 2013); Bodansky and Diringer, ‘Building Flexibility and Ambition into a 2015 Climate Agreement’.

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Alternate Translations: Other Modes of Influence for Top-Down Proposals Even if a largely bottom-up or hybrid process appears to be the most feasible approach for setting mitigation efforts, top-down proposals nevertheless merit further scrutiny in their own right as they may exert a positive influence on global cooperation in other ways. Margaret E. Keck and Kathryn Sikkink set out a typology of ways in which civil society advocates may influence transnational politics, including: (i) generating and disseminating information; (ii) invoking symbols that help to make sense of political issues; (iii) calling on powerful actors to influence a situation; and (iv) holding powerful actors accountable for principles or policies to which they have subscribed.57 I adapt their typology here to explore the influence of top-down proposals as tools for advocacy, where advocacy is construed broadly as action that promotes principled ideas or norms58 such as equity. These tools could be employed not only by civil society advocates but also by governments or international organizations. While these forms of influence do not map precisely onto the categories of equity I have outlined above, category (i) is closely aligned with transparency, categories (iii) and (iv) with accountability, and categories (i), (ii) and (iv) with quality of deliberation. Each form of influence may also help to secure distributive equity. Top-down proposals may achieve these forms of influence at various stages of the policy cycle and at multiple institutional levels. I begin at the level of multilateral review, which is generally the level at which hybrid proposals seek to integrate elements of top-down and bottom-up approaches. I then broaden the scope of analysis to consider other forms of influence: through civil society advocacy and national deliberation. I focus in particular on the informational and accountability roles that top-down proposals may perform. Multilateral Review The first means of influence involves multilateral review processes outside and within the UNFCCC. Top-down proposals may inform expert review of the science of climate change undertaken by the IPCC. The most recent AR5 of the IPCC modelled the regional distribution of mitigation costs using a number of stylized versions of top-down proposals, including equal per capita emissions and proportional mitigation costs.59 Even if governments are at liberty to adopt or reject the findings of the IPCC, its reports have served as an influential – albeit controversial – yardstick for negotiations over recent decades.60 Importantly, expert analysis of top-down proposals – including evaluation of which proposals are more credible than others – may help to dispel the view that top-down proposals are simply activist propaganda lacking sound conceptual foundations. Even if the findings of the IPCC carry substantial epistemic authority, further action may be required to enable top-down proposals to inform decision-making. Multilateral review or oversight mechanisms may play a crucial role in this regard.

57 Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press, 1998): 16. 58 Keck and Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics, 8. 59 Leon Clarke et al., ‘Assessing Transformation Pathways’, in Climate Change 2014, Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge, UK; New York: Cambridge University Press, 2014): section 6.3.6.6. 60 Mike Hulme and Martin Mahony, ‘Climate Change: What Do We Know About the IPCC?’, Progress in Physical Geography 34, no. 5 (2010): 712–14.

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In discussions on possible oversight mechanisms, the idea that the new climate regime should adopt an ‘equity reference framework’ to guide deliberation has become increasingly prominent.61 Under an equity reference framework, both ex ante or ex post review mechanisms could be guided by top-down proposals to varying degrees. For example, countries could justify their national contributions on the basis of a framework incorporating a selection of credible top-down proposals, while a multilateral review process could assess the adequacy of national contributions against the framework. If adopting even a range of credible proposals as benchmarks for review proves too contentious, the framework could be based on individual indicators commonly used in top-down proposals such as national income and emissions.62 While countries would retain discretion whether or not to revise their contributions in the light of the outcomes of reviews, backsliding could be deterred by the stipulation that countries could only revise the stringency of their contributions upward, not downward.63 Employing top-down proposals in this way may help to improve both the deliberative quality and the accountability of the climate regime. While a diplomatically worded multilateral review may not explicitly ‘name and shame’ laggard countries, the implication by an authoritative body that certain countries need to improve their efforts may carry substantial weight. Governments may not necessarily accept or care about the equity principles underpinning top-down proposals, but some (admittedly by no means all) governments may nevertheless care about how they are perceived relative to other countries. Civil Society Advocacy Some well-known top-down proposals have originated at the interface between research and civil society activism, including the Greenhouse Development Rights framework and the Contraction and Convergence approach.64 A recent example of the use of top-down proposal by campaigners that has attracted media attention is the ‘Climate Fairshares’ website launched in 2014. The site, set up by two international non-government organizations (NGOs), draws heavily on the Greenhouse Development Rights framework.65 Top-down proposals may support civil society efforts to influence national governments by promoting information transfer and accountability. First, by employing top-down proposals to provide a principled basis for quantified targets that countries should meet, campaigners may lend greater specificity to their demands than a general call to action would do. Second, top-down proposals may provide the basis for a ‘league table’ for comparing countries and showing which

61 Xolisa Ngwadla and Lavanya Rajamani, ‘Operationalising an Equity Reference Framework in the Climate Change Regime: Legal and Technical Perspectives’, MAPS Research Paper: Issue 21 (Cape Town: Mitigation Action Plans and Scenarios, 2014). 62 Ibid., 18. 63 Haites, Yamin, and Höhne, ‘Possible Elements of a 2015 Legal Agreement on Climate Change’, 6. 64 Baer et al., ‘Greenhouse Development Rights: Towards an Equitable Framework for Global Climate Policy’; Meyer, ‘The Kyoto Protocol and the Emergence of “Contraction and Convergence” as a Framework for an International Political Solution to Greenhouse Gas Emissions Abatement’. 65 Friends of the Earth Jubilee South Asia Pacific Movement on Debt and Development, ‘Climate Fairshares’, http://www.climatefairshares.org/ (access 19 May 2015); John Vidal, ‘Scientists Reveal ‘Fair System’ for Countries to Tackle Climate Change’, Guardian (UK), 21 September 2014, http://www. theguardian.com/global-development/2014/sep/21/scientists-calculations-fair-system-climate-change (access 19 May 2015).

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are doing either more or less than their fair share.66 A ‘naming and shaming’ process could thus help to spur countries into taking action.67 This function of top-down proposals could help not only to ensure consistency-integrity but also to promote context-integrity, since top-down proposals may strengthen the ability of civil society actors to encourage the UNFCCC to achieve its PIJ. National Deliberation Even if multilateral negotiations do not formally adopt a top-down proposal for all countries, individual governments could base their national contributions on the share of effort prescribed by a given top-down proposal. Even if a government does not endorse any single top-down proposal, its deliberations on choice of emissions targets may be informed by a selection of top-down proposals. There is little evidence to date that national governments have formally adopted a top-down proposal as the basis for their national contributions. However, the UK’s Committee on Climate Change provides a notable example of deliberation informed by a range of top-down proposals. The Committee is an independent statutory body that advises the UK Government on its emissions targets and other climate change initiatives. In 2008 the UK Government adopted the Committee’s recommendation to set an emissions reduction target of 80 per cent between 1990 and 2050.68 In formulating its recommendation, the Committee surveyed a number of top-down proposals, including equal per capita proposals and proposals based on reducing the emissions intensity of national income. While the Committee did not endorse any one top-down proposal, it concluded that ‘it is difficult to imagine a global climate deal which is either pragmatically achievable or fair which does not involve the UK and other developed countries reducing their emissions, over the long-term, to a per capita level which if applied across the world would be compatible with our climate objectives’.69 Australia provides a further example of the potential and limits of top-down proposals to influence policy-making. In 2014, the Australian Climate Change Authority (an independent statutory body modelled on the UK example) issued a review of Australia’s emissions targets for 2020 and beyond.70 The report reviewed a number of top-down proposals, including Contraction and Convergence and subsequent variations thereof, Greenhouse Development Rights (both of which received support in some public submissions to the review) and equal mitigation costs as a proportion of national income.71 In more specific terms than its UK counterpart, the report expressed a preference for a modified version of contraction and convergence similar to that previously recommended by the Garnaut Review of Australia’s climate change policy.72 66 Baer, ‘The Greenhouse Development Rights Framework for Global Burden Sharing: Reflection on Principles and Prospects’, 69. 67 Keck and Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics, 24; Thorsten Benner, Wolfgang H. Reinicke, and Jan Martin Witte, ‘Multisectoral Networks in Global Governance: Towards a Pluralistic System of Accountability’, Government and Opposition 39, no. 2 (2004): 200. 68 Committee on Climate Change (UK), ‘Building a Low-Carbon Economy – the UK’s Contribution to Tackling Climate Change’, The First Report of the Committee on Climate Change (London: UK Government, 2008). 69 Ibid., 30. 70 Climate Change Authority, ‘Reducing Australia’s Greenhouse Gas Emissions: Targets and Progress Review: Final Report’ (Canberra: Australian Government, 2014). 71 Ibid., 114. 72 Ibid., 117; Ross Garnaut, The Garnaut Climate Change Review: Final Report (Melbourne: Cambridge University Press, 2008): 203–205.

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As of early 2015, the Australian Government had not accepted the Authority’s recommendations to lift its 2020 target. The Government intends to announce post-2020 targets by the middle of 2015. Whether the Government adopts the Authority’s recommendations for post-2020 targets remains to be seen. However, the Coalition Government elected in 2013 has been considerably less willing to embrace strong action on climate change than its predecessor. The limited impact of the Authority’s recommendations to date underscores the political difficulties in translating ambitious proposals into action, particularly in a political context where fossil fuel interests remain highly influential. However, under a government less ideologically opposed to responding to climate change the topdown proposals informing the Authority’s recommendations may have exerted greater influence. Conclusion Top-down proposals for effort-sharing represent a visionary yet contentious understanding of how to achieve integrity in global climate policy. In this chapter I have argued for the need to rethink the limitations of top-down proposals as well as their potential. Despite their ability to translate vital principles of distributive equity into specific policy recommendations, top-down proposals for sharing mitigation efforts face a significant uphill battle to overcome concerns of institutional feasibility. In addition, while top-down proposals offer greater transparency than bottom-up approaches in some respects, they generally provide an incomplete answer to the question of how to ensure high-quality deliberation and the participation of those interests most affected by climate change. Despite these concerns, we need not dismiss top-down proposals as fatally flawed or irrelevant to policy-making. Instead, I have shown that there are a number of ways in which top-down proposals may inform decisions about mitigation targets, even if governments or multilateral actors do not formally adopt any single proposal. There remains a substantial risk that countries will continue to view existing pledge-andreview arrangements as a means of paying lip service to the idea of ambitious action on climate change while escaping scrutiny over the adequacy of their efforts. Nevertheless, the evidence I have presented points to a number of ways in which reference to top-down proposals may help civil society organizations and official advisory bodies to improve the information base and the accountability of the climate regime. The analysis in this chapter represents a partial evaluation of top-down and bottom-up proposals, particularly as I have focused on a subset of criteria for evaluation as well as on a limited number of proposals and channels for influence. Further research will be necessary to evaluate the ability of top-down or hybrid proposals to secure procedural and distributive equity, as well as to assess in greater depth the influence of top-down proposals on policy-making. The former area of research could yield valuable insights for policy-makers, while the latter could help to build understanding in the scholarly sphere and beyond of the means through which moral norms may influence climate policy specifically and international relations more generally.73 The analysis has also highlighted a broader concern about the lack of symmetry in the way that the IPCC’s recent assessment reports articulate criteria of distributive and procedural equity. This concern points to the need to explore how the IPCC’s criteria for evaluating proposals for

73 Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’, International Organization 52, no. 4 (1998); Chukwumerije Okereke, ‘Equity Norms in Global Environmental Governance’, Global Environmental Politics 8, no. 3 (2008).

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international cooperation could be adjusted in future assessment reports to give greater weight to procedural equity as a value in its own right rather than merely a means to secure feasibility. The arguments presented here counter the view that ensuring integrity is a simple linear process of achieving consistency-integrity by translating a PIJ directly into commitments made by individual countries. Achieving integrity in the climate regime will also depend crucially on context-integrity, which involves a more complex and less tightly coordinated process involving external advocacy from civil society, rational persuasion by scientists and others, and peer pressure from other countries. But a degree of complexity may be a reasonable price to pay in a world where governments can rarely be compelled by a supranational authority to fulfil their moral obligations.

Chapter 8

Reflecting Climate Change Impacts in Governance and Integrity System Design Liese Coulter

Introduction Global climate negotiations have grown out of an imperative to manage the increasing concentration of greenhouse gases (GHG) that intensify the heat-trapping capacity of the Earth’s atmosphere. In recent decades, climate change has impacted natural and human systems on all continents; affecting water resources, shifting species distributions and changing crop yields.1 While this raises the issue of reflecting a non-stationary or unstable climate in current discourse, planning and governance, there are few shared visions of how climate impacts in even the next two decades2 will affect social, economic and environmental systems. Within the bounds of natural variability, a relatively stable climate system has been normative in modern history. Therefore, it is a novel conceptual challenge to identify what factors are most directly climate-related and which are indirectly affected by climate change in our dynamic social, economic and environmental systems. Even for researchers, policy-makers and practitioners who have worked closely with GHG and climate issues for many years, there is a tendency to envision future plans as taking place within a system that is not itself affected by climate change. This challenges the governance of global climate negotiations to develop and adopt mechanisms that reflect how the climate is actually changing and accommodate ensuing regional and national shifts in vulnerability, adaptive capacity and social values. Integrity systems to guide governance that incorporate mechanisms founded on adaptive and humanitarian principles can support ethical stability amid dynamic shifts that will affect nations’ capacity to address their agreed rights and responsibilities. Governance for Stability As a foundation of common law, a measure of success in governance is instruments that have persisted over time and become institutions. By their very nature, institutions are designed to persist through more superficial changes in opinion, short-term crisis and small shifts in culture. In the ongoing discussions and debates that shape governance of the global climate regime we build on common practices from the past that offer stability. These may not, however, be adequate to reflect 1 Christopher B. Field et al., ‘Summary for Policymakers’, in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, ed. C.B. Field, V.R. Barros, D.J. Dokken, K.J. Mach, M.D. Mastrandrea, T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. Girma, E.S. Kissel, A.N. Levy, S. MacCracken, P.R. Mastrandrea, L.L. White (Cambridge: Cambridge University Press, 2014). 2 Ben Kirtman et al., ‘Near-Term Climate Change: Projections and Predictability’, in Climate Change 2013: The Physical Science Basis (Cambridge and New York: Cambridge University Press, 2013).

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fundamental differences in the underlying nature of the present and future environment where carbon and climate governance must function. Well into its first quarter, the twenty-first century is characterized by a population greater than seven billion, instantaneous telecommunication available to many individuals as well as governments, ongoing environmental degradation on a massive scale and complex changes to atmospheric and oceanic chemistry. The interconnected nature of these external factors is pushing social and economic systems into a series of fundamental and sometimes sudden adjustments. Regional and state actors as well as over-arching institutions such as the United Nations are shaping the foundations for future governance through the choices made today. However, these governance structures incorporate many mechanisms that reflect the past operating boundaries of our social, economic and environmental systems. Taking climate change into account is often framed as small adjustments or one-time changes to existing practice with the aim of pursuing current objectives into the future.3 This emphasis on preserving existing systems and restoration to previous states serves to reinforce the slow-moving nature of common governance goals. The very idea of re-evaluating long-standing governance goals introduces an explicit element of change that questions system stability. We look to governance and legal systems to provide the stability needed for decision-making and forward planning. Re-evaluating fundamental goals creates the broader challenge of making legal processes and instruments across all scales more responsive and adaptable4 within increasingly dynamic global environmental change. We can look to the development of the United Nations as an important example of how traditional beliefs and values have become incorporated in governance instruments over the last hundred years. The League of Nations was developed on the heels of the First World War and gave rise to the United Nations at the end of the Second World War. The United Nations, arguably the peak body for global governance, is founded on the unit of the nation-states that make up the preponderance of UN membership. In 1960 the UN General Assembly adopted a Declaration on decolonization that has supported the transition to self-government of more than 80 colonies. Included in the declaration was a statement of the ‘need for the creation of conditions of stability’.5 This reference to political stability is a reminder of the high value of a stable operating environment for any government. Many of these previous colonies have now become members of the United Nations in their own right. The rights and responsibilities of UN membership are assigned based on past and current economic and social indicators of wealth, security and democratic process. This relative status is embedded in the thinking that underpins global governance systems. With a causal link established between human activities and increased GHG in the atmosphere, we now refer to climate change as anthropogenic.6 When considering rights and responsibilities in carbon governance, ethical divides (as represented by the global disparity in nations’ wealth and development) are founded in historic perspectives of past advantages from high fossil fuel energy use and a sense of causal responsibility for GHG emissions.7 Increasing instability in the climate system, and in the global 3 Mark Stafford Smith et al., ‘Rethinking Adaptation for a 4°C World’, Philosophical Transactions of the Royal Society A: Mathematical, Physical and Engineering Sciences 369, no. 1934 (2011). 4 Jan McDonald, ‘The Role of Law in Adapting to Climate Change’, Wiley Interdisciplinary Reviews: Climate Change 2, no. 2 (2011). 5 United Nations, ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ (adopted by General Assembly resolution 1514 (XV) of 14 December 1960, 1960). 6 Kevin Noone et al., ‘A Safe Operating Space for Humanity’, Nature 461, no. 7263 (2009). 7 Margot A. Hurlbert, ‘Evaluating Climate Justice – Attitudes and Opinions of Individual Stakeholders in the United Nations Framework Climate Change Convention Conference of the Parties’, Journal of Integrative Environmental Sciences 8, no. 4 (2011).

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social, economic and environment systems, will affect the nature of international governance and require a greater focus on the future and on addressing disparities. Nowhere is this clearer than in the United Nations Framework Convention on Climate Change (UNFCCC).8 The UNFCCC is an instrument of global carbon governance that deals with nations differently, based on their assessment as belonging to development categories. Compared to the range of criteria that can be considered to indicate either a developed country or developing country, the 2015 UN criteria for status as a least developed country is clearly set out.9 Least developed countries have a capped gross national income (GNI) threshold per capita and a Human Assets Index (HAI) score comprised of four elements related to health and nutrition. The HAI score is equally weighted between percentages of undernourished population, mortality rate for children under five years old, secondary school enrolment and adult literacy. In addition, an economic vulnerability index (EVI) gauges exposure to, and capacity to deal with, environmental and economic shocks. In 2014 the UN Committee for Development Policy (CDP) permanently fixed thresholds for HAI and EVI to their 2012 levels.10 On the issue of introducing any substantial changes to least developed country categories, a 2014 CDP background paper suggests a new category based on environmental vulnerability would be ‘an acceptable issue, as long as it points to an important structural development obstacle that deserves international support and is, to some extent, out of government control’.11 Local impacts from an unstable climate will likely create environmental vulnerabilities in many countries over time, whether or not they are now counted as least developed country nations. Extreme weather events are certainly outside of any one government’s control and their ongoing impacts on social and economic capacity and vulnerability make the value of statements about permanence in regulation questionable. In Kyoto, Japan an agreement was signed in 1997 that established the first internationally binding emission-reduction targets. On the ten-year anniversary of this Kyoto Protocol entering into force in 2005, the UNFCCC issued a media release stating that the original signatories had collectively reduced emissions by 20 per cent, exceeding their agreed combined target of a 5 per cent emission reduction against 1990 levels.12 While the Kyoto Protocol has been at the centre of many disagreements and much rhetoric, it has played an important part in negotiating current global climate governance. Global climate negotiations bring together skilled negotiators who aim to gain the greatest advantage while giving up the least, to benefit the governments they represent. Within this rhetoric, historical benefits from fossil fuel-intensive industries and current emissions are often characterized as conferring obligations and blame13 and allowances of future carbon emissions are calculated as currency to be traded.14 International institutions which ostensibly support carbon reductions, such as the World Trade Organization (WTO) and the International Monetary Fund (IMF), 8 ‘United Nations Framework Convention on Climate Change’ (1771 UNTS 107; S. Treaty Doc No. 102–38; UN Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849, 1992). 9 United Nations, ‘UN, DESA, DPAD, CDP: Least Developed Countries Criteria’, 4 November 2014, http:// www.un.org/en/development/desa/policy/cdp/least developed country/least developed country_criteria.shtml. 10 Ibid. 11 José Antonio Alonso, Ana Luiza Cortez, and Stephan Klasen, ‘LDC and Other Country Groupings: How Useful Are Current Approaches to Classify Countries in a More Heterogeneous Developing World?’ (UN Department of Economic and Social Affairs, 2014): 30. 12 UNFCCC, ‘Kyoto Protocol 10th Anniversary Timely Reminder Climate Agreements Work’ (2015). 13 Paul Harris, ‘Misplaced Ethics of Climate Change: Political Vs. Environmental Geography’, Ethics, Place and Environment 13, no. 2 (2010). 14 Will Steffen and Lesley Hughes, The Critical Decade 2013 Climate Change Science, Risks and Responses (Climate Commission Secretariat, 2013).

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are criticized for promoting economic growth that is often achieved through deforestation and the use of carbon-intensive energy.15 This focus on economics and prosperity is an important paradigm for international trade relations. However, the few mechanisms currently included in economies to reduce carbon emissions are not well integrated into practice. In particular, quotas and fixed emission allowances tend to focus on past emissions and usages of carbon-intensive industries. Acknowledging that continuous reductions in carbon emissions are essential to reduce climate impacts there is opposition to any attempts that might enshrine past privilege as a right. By the same token, there is reluctance to endorse high levels of future emissions as a right for nations on a speedy track to development.16 The way that we understand the risks and costs associated with reducing carbon emissions is strongly influenced by the way that we see the future. Although we know now that human activities and the global carbon and climate systems are affecting one another, this adds another layer of complexity to an already uncertain future. Assessing how future climates and future societies evolve together will be useful to negotiate agreements that affect many nations over decades and even centuries. In 1998 the UN Environment Programme (UNEP) released methods to develop climate change impact assessments and adaptation strategies17 that include a diagram to show a basic relationship between future climate and future societies. The authors use socio-economic scenarios as context to understand the larger implications of climate impacts and make the point that society and climate do not develop independently. Human decisions have the capacity to affect, and be affected by, both the climate and society. In reality, future climates will take place in future societies not the societies of today. Envisioning future societies in the current climate and future climate with the current societies can only happen in our imaginations. As we make the transition from our current climate and current society to the future climate with a future society, the transition will not be even and smooth. Already we tend to talk about the impacts from climate change as happening in the society of today, or we see the society of tomorrow operating in the climate of yesterday.18 It may seem self-evident that only the interplay between climate and society that occur in the same time-frame can coincide in reality. Any references, for instance, that combine future climate and current society are counterfactual, as they can only coexist in our imagination. However, for the most part we recall familiar images of cities and ecosystems when we imagine the future19 even when discussing projected climate change. This poses a significant challenge for the people who must assess negotiating positions, governance goals and the short-term decisions that shape the future of nations and societies. There is a huge range of weather events that make up climate and some regions naturally experience a greater range of extremes than others. The boundaries of those extremes in some sense define the edges of normal climate in any location. With climate change bringing us new extremes of both intensity and frequency in weather events, it becomes an imaginative challenge to envision the climate of the future. Our understanding of the limits within which social systems

15 Simon Caney, Justice Beyond Borders: A Global Political Theory (Oxford and New York: Oxford University Press, 2005). 16 Ibid. 17 Jan F. Feenstra et al., Handbook on Methods for Climate Change Impact Assessment and Adaptation Strategies (UNEP, 1998). 18 W. Neil Adger et al., ‘Are There Social Limits to Adaptation to Climate Change?’, Climatic Change 93 (2009). 19 Daniel L. Schacter, Donna Rose Addis, and Randy L. Buckner, ‘Remembering the Past to Imagine the Future: The Prospective Brain’, Nature Reviews. Neuroscience 8, no. 9 (2007).

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and ecosystems operate will be challenged by a novel climate that delivers ecological surprises outside the bounds of modern experience.20 Assuming a Stationary Climate Political and operational stability are valuable assets for a secure and prosperous society. Governance systems are designed to achieve stability and reinforce it within social and economic systems.21 Therefore, it is only natural to integrate this desire for stability in the design of policy instruments relating to the climate. This is reflected in the wording of the UNFCCC, whose objective as stated in Article 2, is ‘… stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.22 This declares the aim to minimize interference with the climate system while at the same time it enshrines an explicit desire for stability. This is a powerful statement as the foundational objective for global climate governance and mirrors known and understood governmental goals that permeate common practice. Unfortunately, GHG concentrations have continued to increase since 1992 when atmospheric carbon dioxide (CO2) reached 356.38 parts per million, and 400.26 parts per million in February 2015.23 As projected changes are surpassed by current observations, the goal of stability will need to be reconsidered when applied to something as complex as land-atmosphere-ocean interactions, especially now they have become intimately linked with human systems. The aim to support political and operating stability is implicitly built into many governance instruments where indicators warn if corrective action is needed. For example, the World Bank each year updates a set of six Worldwide Governance Indicators: Voice and Accountability; Political Stability and Absence of Violence; Government Effectiveness; Regulatory Quality; Rule of Law, and Control of Corruption.24 While not the final word on assessing the success of governments, they are useful mechanisms to indicate relative changes between nations. As the climate system begins to shift it will be a challenge to determine what key Global Climate Indicators (GCI) will assess relative risk to nations and populations from climate impacts. Conversely, it will be equally important to gauge risks to the climate system from human activities. Climate-related risks are often identified in relation to extreme weather events such as drought, flood and storm. When considering flood for example, there is an inbuilt assumption in the calculations used by water engineers that future risks will reflect records from the past.25 Evidence is now pointing, however, to rainfall and runoff events that fall outside of previous boundaries of natural extremes, even when counted over long time-frames.26 This challenges the underlying 20 John W. Williams and Stephen T. Jackson, ‘Novel Climates, No-Analog Communities, and Ecological Surprises’, Frontiers in Ecology and the Environment 5, no. 9 (2007). 21 D. Carment, Y. Samy, and J. Landry, ‘Transitioning Fragile States: A Sequencing Approach’, The Fletcher Forum of World Affairs 37, no. 2 (2013). 22 ‘United Nations Framework Convention on Climate Change’, art. 2. 23 Mauna Loa Observatory, ‘CO2 Now: Current CO2’, CO2 Now, 22 March 2015, http://co2now.org/ Current-CO2/CO2-Now/ (accessed 13 April 2015). 24 Daniel Kaufmann, Aart Kraay, and Massimo Mastruzzi, ‘Governance Matters VIII: Aggregate and Individual Governance Indicators, 1996–2008’, World bank policy research working paper, no. 4978 (2009). 25 Seth Westra et al., ‘Addressing Climatic Non-Stationarity in the Assessment of Flood Risk’, Australian Journal of Water Resources 14, no. 1 (2010). 26 Lucia De Stefano et al., ‘Climate Change and the Institutional Resilience of International River Basins’, Journal of Peace Research 49, no. 1 (2012).

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assumption of stationarity, the notion that natural variability operates within stable boundaries.27 This would hold that unless there is a significant shift in climate, even extreme weather events would not exceed the extremes of the past. Some indicators are especially stable such as average global temperature. Mathematically it is derived from so many individual observations that it takes significant individual shifts in the same direction to move this average. When we see even small increases now in such stable indicators as the global-mean temperature, we know that the most recent records can only be due to warming in the climate.28 While a stationary climate has been an explicit assumption in water engineering, the assumption of a stable climate also implicitly underpins many other aspects of risk assessment, infrastructure planning and institutional governance. Consistent and dependable rainfall patterns have contributed to shaping the development of societies and cultures. Many national and trading borders traditionally follow the courses of rivers, often leading to the formation of large and multicultural cities at river mouths. Societies have grown and prospered around traditional times of planting and harvest that follow spring rains and autumn frosts. This has led trading relationships that underpin the global economic system to be shaped by the ebb and flow of seasonal produce and manufactured goods. In a stable climate these patterns operate between the boundaries of change experienced in the past. While we have always experienced natural extremes of heat and cold; of drought and flood; there were limits beyond which these events did not pass. We know the extent of these boundaries through instrumental records, scientific analysis, and oral and written knowledge passed down through generations. The assumption of a stationary climate may not be explicitly expressed, however it forms an unseen foundation for many of our long-term social, cultural and economic practices. For over half a century we have measured growth in concentrations of carbon dioxide in the atmosphere every year, with uninterrupted records started in 1958 at Mauna Loa Observatory in Hawaii.29 Both the ongoing increase in CO2 and the rise in the speed of that increase have led the Global Carbon Project (GCP) to request ‘more frequent assessments of the state of the planet, and by implication a better understanding of the future evolution of the carbon cycle, and the requirements for climate change mitigation and adaptation’.30 Significantly, the GCP referred to the carbon cycle as something that is evolving into the future. Although a great deal of attention is paid to increasing changes in the climate system, we rarely see mention of changes in the sinks and flows that annually cycle Petagrams31 of carbon between land, sea and air. Over the past 50 years carbon sinks on land and oceans have already been shown to reduce their efficiency in absorbing anthropogenic emissions, partly in response to changes in climate and atmospheric CO2.32 Challenging impacts of climate change on the interrelated carbon and human systems can include large and possibly sudden shifts in both the sources of carbon emissions and the usefulness of the sinks that naturally absorb these.33 Concurrently, human populations may face unprecedented impacts on domestic security, health and social integrity through weather-related impacts on themselves and their 27 Chris Milly et al., ‘Stationarity Is Dead: Whither Water Management?’, Science 319, no. 5863 (2008). 28 S. Rahmstorf and D. Coumou, ‘Increase of Extreme Events in a Warming World’, Proceedings of the National Academy of Sciences USA 108, no. 44 (2011). 29 Forrest M. Mims, Hawai’I’s Mauna Loa Observatory: Fifty Years of Monitoring the Atmosphere (Hawaii: University of Hawaii Press, 2012). 30 Corinne Le Le Quéré et al., ‘Global Carbon Budget 2013’, Earth System Science Data 6 (2014): 257. 31 1 Petagram carbon (1 PgC) =1 Gigatonne carbon (1 GtC) = 1012 kgC. 32 Michael R. Raupach et al., ‘The Declining Uptake Rate of Atmospheric CO2 by Land and Ocean Sinks’, Biogeosciences 11, no. 13 (2014). 33 Brendan Mackey et al., ‘Untangling the Confusion around Land Carbon Science and Climate Change Mitigation Policy’, Nature Climate Change 3, no. 6 (2013).

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traditional trading partners.34 This is especially difficult to address in designing carbon and climate governance and integrity systems that will operate in a non-stationary climate system. Assuming a Non-Stationary Climate Knowing that the climate has started to become non-stationary,35 we must assess what impact this will have on other systems. Our need to understand what it means to have a stationary climate is in response to preparing to adapt to the impacts of a non-stationary climate. On some level all of the mitigation to CO2 emissions into the future whether achieved through international agreement or voluntary offsetting36 will include an adaptation response to climate impacts. Even people who do not acknowledge climate change is affected by human activities are starting to make adjustments to more and different extreme weather events, new policy instruments and the fear of climate change impacts.37 The divide between mitigation and adaptation cannot be maintained now that both must operate while the climate is changing. As defined by the Intergovernmental Panel on Climate Change (IPCC), adaptation includes adjustments in ecological, social or economic systems in response to actual or expected climatic stimuli and their effects.38 However, there are a host of barriers to successful management of climate impacts. Common obstacles to adaptation that have significant ethical dimensions include ‘competing priorities that place demands on scarce resources, poverty that limits capacity to adapt, lack of knowledge, weak institutions, degraded natural resources, inadequate infrastructure, insufficient financial resources, distorted incentives and poor governance’.39 It has been argued that these social limits to adaptation are contingent on four pivotal aspects: ethics, knowledge, risk and culture.40 In terms of values and ethics, these so called ‘limits’ are framed as mutable and open to management through explicit and deliberative renegotiation that acknowledges shifts in values, acceptable risks and the distribution of power. Governance will need to both guide and respond to these changes. One consequence of a non-stationary climate is the increase in unprecedented weather events. Severe storms, flash floods and wildfires are natural hazards that elicit disaster responses within and between nations. When identified as acts of nature these events cannot be seen as the responsibility of any one government, although the effectiveness of civil preparedness and response can be questioned. The global distribution of exposure to severe weather events will change as new patterns emerge through unprecedented impacts. Unprecedented heat waves caused an estimated 70,000 fatalities across Western Europe in 2003 and in south-eastern Australia led to 34 IPCC, Climate Change 2014: Impacts, Adaptation, and Vulnerability. Working Group II Summary for Policymakers, ed. Christopher B. Field, et al. (Cambridge, UK and New York USA: Cambridge University Press, 2014). 35 Milly et al., ‘Stationarity Is Dead: Whither Water Management?’; Westra et al., ‘Addressing Climatic Non-Stationarity in the Assessment of Flood Risk’. 36 Liese Coulter, Pep Canadell, and Shobhakar Dhakal, Gcp Report No. 6 Carbon Reductions and Offsets (Canberra: Global Carbon Project, 2007). 37 Joseph Reser and Janet K. Swim, ‘Adapting to and Coping with the Threat and Impacts of Climate Change’, The American Psychologist 66, no. 4 (2011). 38 Barry Smit et al., ‘An Anatomy of Adaptation to Climate Change and Variability’, Climatic Change 45 (2000). 39 James Adejuwon et al., ‘A Stitch in Time: General Lessons from Specific Cases’, in Climate Change and Adaptation (Hoboken: Routledge, 2012): 3. 40 Adger et al., ‘Are There Social Limits to Adaptation to Climate Change?’

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peak temperatures of over 45°C associated with over 370 deaths early in 2009.41 Urban flooding is associated with property loss and high costs in infrastructure repair. In a non-stationary climate new methods are needed to manage the increased uncertainty and risks associated with floods.42 There is growing literature that links climate change with increased threats to human health through malaria, dengue and cholera, and to the very way of life in coastal zones and Small Island States.43 Syria and the Challenge of the Stateless Twenty-first century societies are increasingly entwined with citizens of other countries through family migration, international exchange of food and goods, and interrelated economic, communication and transport systems. This increased global connectivity continues to accelerate the swift pace of social and technological change that characterized the twentieth century. Global mobility has led to many families with grown children and grandchildren spread around the world. It challenges the comforting insulation of national borders when those closest to us live far away. Additionally, citizens with strong physical and familial attachments to one place may be unwilling to allocate resources for ‘outsiders’ when local domestic stressors and threats are heightened.44 As the needs of society change in response to novel and possibly abrupt stressors from climate and other factors, moral attitudes will be reshaped and social values renegotiated. How we express basic human values will be affected by impacts from climate related changes that will be felt differently depending on location, culture, beliefs, resources and perceived vulnerability.45 There are recent examples where some factors in the shifting climate system have challenged values and compromised integrity where it was already weakened. Drought related to climate change is an acknowledged factor in the Syrian civil war that entered its fourth year in 2015, displacing millions, both internally and in neighbouring countries.46 Rural Syrians crowded into cities and peri-urban areas when crops failed and livestock died during a three-year drought that was the most severe since instrumental records have been kept.47 This added to existing vulnerabilities from an influx of Iraqi refugees, government failure and poor water management. The Syrian conflict demonstrates the complex dimensions of impacts that can catalyse transformational changes in vulnerable systems. The people of Syria who were hosts to Iraqi refugees have become refugees to their neighbours, especially Lebanon. Initially offering sanctuary, over time Lebanese generosity has in places hardened into resentment as local jobs go to poorly paid Syrians while food, water and safety become scarce. While Syrians in Lebanon have access to basic services through institutions,48 their medical needs include more than conflict-related physical and mental trauma. In addition, many Syrian refugees came from middle-class neighbourhoods and need 41 Margaret E. Loughnan et al., A Spatial Vulnerability Analysis of Urban Populations During Extreme Heat Events in Australian Capital Cities (Gold Coast: National Climate Change Adaptation Research Facility, 2013). 42 Westra et al., ‘Addressing Climatic Non-Stationarity in the Assessment of Flood Risk’. 43 Caney, Justice Beyond Borders: A Global Political Theory. 44 Ibid. 45 Hans-Martin Füssel, ‘Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research’, Global Environmental Change 17, no. 2 (2007). 46 IFRC, ‘Syria Crisis – IFRC’, International Federation of Red Cross and Red Crescent Societies, 6 March 2015, http://www.ifrc.org/syria-crisis.national. 47 Colin P. Kelley et al., ‘Climate Change in the Fertile Crescent and Implications of the Recent Syrian Drought’, Proceedings of the National Academy of Sciences 112, no. 11 (2015). 48 UNHCR, ‘UNHCR Global Appeal 2015 Update – Lebanon’ (2015).

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treatment for ‘chronic conditions such as asthma and diabetes, as well as cardiovascular and kidney diseases’.49 The situation of Syrian citizens demonstrates how complex levels of stability, prosperity and governance can swiftly change, whatever the triggers. The estimated tens of thousands of stateless people in Lebanon alone remind us that nationstates do not represent all of the world’s populations. The global stateless population has already grown to an estimated ten million people.50 To put this in perspective, half of nations globally have less than ten million citizens. This greatly challenges the context for national integrity or contextintegrity of nations where external forces and pressures do not support the norms and values found within their borders. The continued presence of stateless persons within national borders internalizes outside pressures and creates a number of challenges: to honour commitments made in easier times (consistency-integrity); to reflect citizen mores, desires and fears (coherence-integrity); and to deal with nations who work to shift the burden of the stateless onto others (context-integrity). Carbon Governance and Integrity Adapting to Climate Change Built on the foundations of the UN process, carbon governance has been characterized as an environmental issue requiring management of global stocks and flows of carbon to the atmosphere. This was the primary focus of global governance when actual impacts on the climate system were seen as something that might still be avoided. The initial aims to stabilize atmospheric carbon dioxide in an equitable manner that does not disadvantage economic prosperity remains a core goal. However, GHGs have already begun to affect the climate system in ways that challenge our conceptions of normal weather. We must now consider how changes in patterns of climate will affect the social and economic systems that developed within a stable climate envelope. If we see the boundaries of weather extremes as dynamic rather than stationary we are faced with unfamiliar challenges that will introduce new levels of instability between nations, throughout economies and within cultures. International governance processes to reduce GHGs in the atmosphere must operate while the climate is changing. Much governance will be reactive to natural disasters and a likely increase in conflict, both within national borders and with neighbours and trading partners. Governance that is swiftly changing may not reflect core ethical values that have been long held by societies. To shape a future world that reflects higher-order thinking and deeply held values, global governance will need to incorporate principles that are well suited to future challenges. Existing principles that can guide governance in a changing world are embodied in the precepts of adaptive governance that has been developed from environmental management to include economic and social systems. Maintaining integrity and global governance systems will require explicit agreements and practices in an increasingly conflicted and resource-constrained environment. To design ethical and integrity systems for the future that may be adopted quickly they must be based on already agreed humanitarian principles. This section will discuss principles of adaptive governance and humanitarian values and suggest some practices that may be useful to maintain the integrity of global governance in a changing climate.

49 Médecins Sans Frontières, ‘Syria I Médecins Sans Frontières (MSF) International’, 10 March 2015, http://www.msf.org/syria (accessed 10 March 2015). 50 UNHCR, ‘UNHCR – Stateless People Figures’, 10 March 2015, http://www.unhcr.org/ pages/49c3646c26.html (10 March 2015).

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Principles: Adaptive Governance Adaptive governance is a framework for analysing the foundations of multilevel governance modes that have grown out of adaptive management principles founded in social-ecological systems.51 Explicitly integrative, adaptive governance draws on many disciplines and reflects systems thinking that accounts for dynamic changes over time.52 Adaptive governance is increasingly reflected in both social and economic common-pool governance.53 A focus on both governing common resources and the inbuilt assumptions of interrelated systems make adaptive governance useful to combine nationalistic framing and global interactions in an evolving process. The practices of institutional diversity, nested functions and analytical deliberation that underpin robust localized governance are also well suited to adaptive governance.54 While adaptive governance is not an end in itself, it offers a functional approach to manage global carbon reductions and reduce losses from climate change.55 Institutions that are front-runners in adaptive governance research include Sweden’s Stockholm Resilience Centre and Canada’s International Institute for Sustainable Development (IISD). Both offer extensive resources that can guide the application of adaptive governance principles to issues spanning local to global boundaries and immediate to long-term considerations. Principles: Humanitarian Values Governance frameworks operate first to address civil responsibilities and exchanges, enforcing ethical standards only when they are embodied within the laws themselves. However, the mechanisms and procedures of an integrity system are designed to ensure compliance with minimum ethical standards and promote the pursuit of ethical behaviour.56 For this reason, an explicit integrity system offers a unifying force to global carbon governance while allowing for differences in existing and evolving domestic rules of law. An integrity system will need a strong foundation to persist in the face of ongoing shifts in relative vulnerabilities and capacities that impact rights and responsibilities. The humanitarian principles that underpin the International Red Cross and Red Crescent (ICRC) and the UN Millennium Development Goals offer established guidance. The United Nations Educational, Scientific and Cultural Organization (UNESCO) have recognized the importance of ethics focused on standard setting, capacity building and raising awareness. These lead to practical applications in developing internationally agreed normative frameworks to guide policy-making, enhancing the

51 Stockholm Resilience Centre, ‘Adaptive Governance – Stockholm Resilience Centre’, 28 March 2015, http://www.stockholmresilience.org/21/research/research-themes/stewardship/adaptive-governance-. html (accessed 28 March 2015). 52 Steve Hatfield-Dodds, Rohan Nelson, and David Cook, ‘Adaptive Governance – an Introduction, and Implications for Public Policy’ (paper presented at the 51st Annual conference of the Australian Agricultural and Resource Economics Society, Queenstown NZ, 13–16 February 2007). 53 Emily Boyd and Carl Folke, ‘Adapting Institutions, Adaptive Governance and Complexity: An Introduction’, in Adapting Institutions: Governance, Complexity, and Social-Ecological Resilience (Cambridge University Press, 2011). 54 Thomas Dietz et al., ‘Household Actions Can Provide a Behavioral Wedge to Rapidly Reduce US Carbon Emissions’, Proceedings of the National Academy of Sciences 106, no. 44 (2009). 55 Ronald D. Brunner and Amanda H. Lynch, Adaptive Governance and Climate Change (Boston: American Meteorological Society, 2010). 56 Andrew Alexandra and Seumas Miller, Law, Ethics and Governance: Integrity Systems for Occupations (Farnham, UK and Burlington, USA: Ashgate, 2010).

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ethics infrastructure in countries to better cope with the ethical issues and supporting public debate to promote a better understanding of the moral choices available.57 Practice Robust, flexible and monitored policies are needed to address the non-stationary nature of environmental systems, now and into the future.58 The design and application of these policies can be built on established principles of adaptive governance and humanitarian considerations. Five practices in particular that will become increasingly important are discussed below. They are to: integrate re-evaluation; identify triggers; incorporate new knowledge; make values tradeoffs transparent; and honour discontinuity. If these are instituted, reflecting the principles of both adaptive governance and humanitarian values, they may provide important guidance for generations to come. Integrate re-evaluation As ongoing impacts of climate change are experienced differently around the world, the adaptive capacity of some local actors will change more quickly than others. This will be true across scales from local to continent-wide and will affect populations not necessarily bounded by national borders. The relative status between institutional actors and nations that are determined by economic prosperity, political stability and population security will be affected by these impacts. Therefore, instituting an ongoing process that re-evaluates both exposure to shocks and capacity to adapt will become increasingly necessary. Evaluation criteria for UN assessment of member status as a least developed country began in the 1970s. Category criterion include: infant mortality; how well fed is the population; and levels of education and literacy, as well as vulnerability, rated in terms of exposure to natural and economic hazards and experienced shocks such as economic failure or natural disaster.59 The process to re-evaluate the status is called ‘graduation’, a label that implies a linear progression towards maturity and a desired goal. However, there have been very few ‘graduations’, which are rewarded by reduced support and increased responsibility. To reflect the dynamic operating environment of a non-stationary climate, evaluation procedures such as these need to be reconsidered. Both the mind-set of the postcolonial era and the acknowledgment of continuous change require new mechanisms that allow for ongoing re-evaluation where change is not explicitly expected in only one direction and improvements do not come at such a high cost. Incorporate new knowledge Much international governance is based on a scientific management paradigm that is often criticized for not valuing cultural and indigenous knowledge. While it is important to recognize traditional ways of knowing, there is a great deal about the climate system that has only been understood through instrumental records, satellite data and extensive computational modelling. It is a challenge to researchers and policy-makers to understand and communicate the metaphoric 57 Henk A.M.J. ten Have, ‘Unesco’s Activities in Ethics’, Science and Engineering Ethics 16, no. 1 (2010). 58 Daniel E. Schindler and Ray Hilborn, ‘Prediction, Precaution, and Policy under Global Change’, Science 347, no. 6225 (2015). 59 Alonso, Cortez, and Klasen, ‘LDC and Other Country Groupings: How Useful Are Current Approaches to Classify Countries in a More Heterogeneous Developing World?’

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and analytical aspects of climate change.60 A more collaborative approach is needed to integrate adaptation science and practice as new knowledge and understandings become available. Frequently, the explicit goal of environmental management is to restore systems to a preferred state from the past, generally assuming a stable climate. In the Florida Everglades, management efforts to return these wetland systems to an earlier state without considering climate impacts on available water will not make the system more adaptable to current and future conditions. Instead, an explicit process of ‘Adaptive Restoration Planning’ has been proposed to reflect the influence of climate change scenarios on restoration efforts.61 This is an example where new knowledge provides real benefits in planning to adapt. Where local or state governments are reluctant to apply new knowledge that would benefit the greater community, explicit integrity and ethical systems may provide transparent processes to move forward. Research is also offering avenues to reflect a non-stationary climate in governance instruments. Ruhl and Salzman suggest a three-step assessment process relating a non-stationary climate to the rule of law.62 They consider: firstly, the envelope of variability for the key attributes that define the fields in which the law operates; secondly, to what extent will the traditional envelope of variability be distorted; and finally, to what extent will the stationarity-based components of theory and practice need to be altered or even abandoned. These highly technical questions however, can only be answered fully by those with practical experience, who have a real understanding of how rules of law affect, and are affected by, the situations they are meant to govern. This requires substantial give-and-take between academics, policy-makers and affected societies over time. Make values trade-offs transparent An increasingly dynamic system, not expected to return to a stable state in the near future, will sustain some losses that cannot be regained. The valuation of vulnerable infrastructure and environmental habitats is not purely an economic equation. Social and cultural values of historic monuments, natural wonders and religious centres have to be considered as well as the financial costs and benefits they may represent. Levees and dams that protect assets that are highly valued by some, may divert floodwaters to another area disadvantaging other populations. As difficult choices have to be made of what to save from rising waters and where to invest in flood protection, making the value trade-offs explicit is essential to support informed discussions and gain social support as part of the decision-making process. Otherwise, unintended consequences of those significant investments may create unacceptable losses in the long term. Vulnerability to climate change impacts and the consequent need for adaptation has been commonly framed by inequities of the past. Nations assessed as less developed have an existing framework for foreign aid that is changing as payments from adaptation funds have sometimes replaced traditional aid payments. International adaptation funding that is modelled on past systems for foreign aid can replicate common barriers to effectively directing the assistance. Funding for least developed and particularly vulnerable Small Island States has been criticized as having insufficient focus on increasing the adaptive capacity of local governments; on addressing underlying social

60 Benjamin L. Preston, Johanna Mustelin, and Megan C. Maloney, ‘Climate Adaptation Heuristics and the Science/Policy Divide’, Mitigation and Adaptation Strategies for Global Change 20, no. 3 (2015). 61 Martha Nungesser et al., ‘Potential Effects of Climate Change on Florida’s Everglades’, Environmental Management (2014). 62 John B. Ruhl and James Salzman ‘Climate Change Meets the Law of the Horse’, Duke Law Journal 62, no. 5 (2013).

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issues that contribute to vulnerability, and on valuing the role of cultural knowledge in determining acceptable adaptive choices for communities.63 Identify triggers for shared responsibilities Severe weather events are felt locally and must be responded to by local resources in the first instance. Without guidance, such as GCI to incorporate new expectations of change in the extent and frequency of these events, there is a tendency to rebuild settlements and infrastructure to suit the conditions of the past. However, abrupt and sometimes expensive costs to society through widespread flooding for instance, can also act as a trigger for learning and adaptive behaviour that may help to reduce costs in the future.64 There is wide variation of national practices to support local governments to manage climate related disasters such as wildfire, flood and drought. Trigger points designed into governance architecture can be used to re-evaluate what, and how, responsibilities are shared across tiers of government to respond to locally recurring impacts. Trigger points can provide a useful connection to an explicit integrity system as they can be determined in advance of a crisis and be objectively monitored in terms of rights and responsibilities. Rights and responsibilities across tiers of government may shift in response to severe weather events. In 2011, after significant flooding in Queensland cost an estimated $30 billion in damages, the federal government imposed a tax levy on all Australians and amended Australia’s Natural Disaster Relief and Recovery Arrangements (NDRRA) to require states to insure their own losses.65 This level of flooding was unprecedented in many areas of the state and instigated a swift policy response. Present day planning could determine what might be significant triggers and appropriate responses in the future and allow governments to be less reactive. There will also be tensions across national boundaries that will challenge traditional relationships. There are 276 international river basins globally and 24 of those, mainly in northern and sub-Saharan Africa, have been identified as being at high hydro-political risk from changes in water availability. Considering climate change projections to 2050, that number rises to 60 transnational river basins at risk of being involved in conflict over water resources in much more geographically dispersed areas.66 Gaining a better understanding of what may be key triggers for change from climate impacts and reflecting those in current governance mechanisms can lead to more timely and effective responses to change. Honour discontinuity Some changes will not have easily discernible triggers and may not follow established patterns of transition. This need for an improved capacity to deal with surprising events leads us to examine what value may be found in discontinuity. Some future scenario planning is building on the concept that instead of seeing the opposite of ‘fragile’ as ‘robust’, we might assess the preferred state as ‘anti-fragile’67 or advantaged by disruption. Recent efforts and scenario planning use 63 Natasha Kuruppu and Reenate Willie, ‘Barriers to Reducing Climate Enhanced Disaster Risks in Least Developed Country-Small Islands through Anticipatory Adaptation’, Weather and Climate Extremes (2014). 64 Mike Hulme, ‘Abrupt Climate Change: Can Society Cope?’, Philosophical Transactions of the Royal Society of London. Series A: Mathematical, Physical and Engineering Sciences 361, no. 1810 (2003). 65 Ruth Biggs, ‘Paying for Disaster Recovery: Australia’s NDRRA and the United States’ NFIP’, Australian Journal of Emergency Management 27, no. 2 (2012). 66 De Stefano et al., ‘Climate Change and the Institutional Resilience of International River Basins’. 67 Nassim Nicholas Taleb, Anti-Fragile: How to Live in a World We Don’t Understand (Allen Lane, 2012).

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this to deal with increased uncertainty and move away from the need to clearly identify causes in managing complex situations.68 Extended periods of discontinuity threaten the goal of stability that underpins much longterm governance. Managing discontinuity will be essential to reduce the fragile nature of states in transition. International governance and support will be most useful when it supports internal processes of establishing a new sequence of authority, legitimacy and capacity.69 However, moving through this process of fragmentation and rebuilding to address new circumstances may involve a series of significant transitions over time. This discontinuity will affect nation’s rights and responsibilities regarding carbon governance agreements across all levels of development status. We will need to rethink the governance approach to fragility in terms of nation-states and stateless populations. A synergistic approach to fragmentation may be a positive option. On a practical level this could be initiated by increasing policy synergies, better integrating processes across governance mechanisms and reducing duplications.70 To address the goal of building long-term and effective climate governance, a persisting integrity system will have to honour differences, while providing a guide for consistency in new governance architecture. Conclusion It will be a conceptual as well as a practical challenge to understand and address the implications of a non-stationary climate system into the coming decades and, likely, centuries. The governance of human interactions with the carbon and climate system will itself be affected by climate impacts and their consequences. The design and implementation of governance instruments over the next decade to reflect this new understanding will shape the trajectory of future mitigation of atmospheric and oceanic CO2. Concurrently, governance will shape adaptation priorities and investment that will influence how societies and cultures make these transitions. Building on the principles of adaptive governance and humanitarian values offers already agreed foundations and some welcome continuity to future scenarios marked by continuous and uneven change. An explicit integrity system that has significant international agreement will be essential to maintain any degree of equity when populations and even nations are fighting for survival. Practices are needed that: support continuous re-evaluation; seek out triggers for change; integrate new knowledge in decision-making; communicate potential values’ trade-offs; and honour discontinuity. The mantle of a functioning global integrity system will need to be woven of strong and simple threads into a whole cloth that is broad, inclusive and flexible.

68 James Derbyshire and George Wright, ‘Preparing for the Future: Development of an Antifragile Methodology That Complements Scenario Planning by Omitting Causation’, Technological Forecasting and Social Change 82, no. 1 (2014). 69 Carment, Samy, and Landry, ‘Transitioning Fragile States: A Sequencing Approach’. 70 Frank Biermann et al., ‘The Fragmentation of Global Governance Architectures: A Framework for Analysis’, Global Environmental Politics 9, no. 4 (2009).

Chapter 9

Ethics and Governance in Climate Change Debate: The Need for an Institutional Shift from Nation-States to Individuals Yugank Goyal1

Introduction My aim in this chapter will be twofold. First, I attempt to discover and collate the blind spots of existing ethical frameworks which dominate climate change debate, and show how this leads to failed attempts for identifying a unanimously binding framework. Second, I offer an alternative perspective, based upon a focus on rich and poor people, rather than rich and poor nations. Here, I will shift the attention from the international governance rubric to integrity concerns, domestic institutions and remapping of key variables. Ethical discourse on climate change has developed itself into what looks like a bundle of contradictions. Efforts to carve out intuitively appealing and morally just theories, which may guide the behaviour of nation-states incorporating their respect and integrity towards the environment, are met with difficult and discouraging questions that remain unanswered in the same ethical framework. Frantic search for another framework often addresses the new challenges, but then leaves some already answered questions unaddressed. Furthermore, when tested against the canonical philosophical wisdom, the moral limits are uncomfortably stretched. Global climate change has not been called as ‘the perfect moral storm’ for no reason.2 This is unfortunate. The more certainty we have about the catastrophic eventualities our planet is heading towards from our activities, the more uncertainty we have in dealing with the situation. In the wake of compelling pressure to act, nation-states end up at the negotiating table, where pragmatism rules and bargaining power wins. In the absence of any guiding morallyjust theory, there is little discovery of an appropriate methodology. The vacuum is filled by the governance structure of carbon emissions credits and carbon offsets, which are often labelled as morally incapacitated. The crevices in carbon trading systems are visible and widening. The hopelessness of negotiations is more painful than ever before. Jamieson is therefore correct in understanding the merit in the need for a new value system for climate change, since all our previous value systems presupposed individual, local and identifiable harms.3 We need an order that provides practical imperatives to both rich and poor nations to reduce their emissions. Studies have shown that the highest vulnerability befalls, unfortunately, the most unfortunate themselves – disasters are 1 I would like to thank Ranjan Ghosh for valuable comments on an earlier draft of this chapter. 2 Steve M. Gardiner, ‘A Perfect Moral Storm: Climate Change, Intergenerational Ethics, and the Problem of Corruption’, in Climate Ethics: Essential Readings, ed. Steve M. Gardiner, et al. (New York: Oxford University Press, 2010). 3 Dale Jamieson, ‘Ethics, Public Policy, and Global Warming’, Global Bioethics 5, no. 1 (1992).

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classists and violently undemocratic. With little agreement on how a fair distribution scheme of climate change should look,4 and with the most fairness considerations hopelessly forcing the rich countries to take the lead, the future demands an urgent need for an alternative strategy. The chapter begins to excavate such possibilities. It is an effort to show that one of the reasons for this dismal picture as regards climate change is the focus of international community on nationstates as primary actors in the game, rather than individuals. The glossing over of considerable heterogeneity within countries ignores the distinction between the rich of poor countries and the poor of rich ones. This unquestioned starting point converts convincing ethical principles into convoluted sites for contestations. In addition, it also pushes for an undue importance to the cosmetics of compliance rather than the substance of it. I argue for individual-based plan and execution of policies, and illustrate its mechanism in this chapter. In the second part, I briefly dwell on the ethical pivots of climate change debate and explain their instability. In the third section, I elaborate the problem and need for a process of identifying alternative strategies. I propose the need for diluting the importance of nation-states as participants in the climate change struggle, and for making people central. In other words, the chapter directs stakeholders to focus on rich and poor people rather than rich and poor countries. I show this through three specific interpretations: integrity, domestic institutions and changing the vocabulary. Mapping Climate Change Ethics and Locating the Theories’ Blind Spots Prominent frameworks that have afforded us some clarity in viewing the climate change debate at philosophical and ethical levels are indeed empowering. They are also the source of constant worry for governments around the world, who strive to ensure that their politics gets legitimized under one or more of these frameworks. This may merely be an effort to achieve cosmetic compliance, but it still imposes a heavy political burden. The burden is political, and often concentrates on nation-states. Individual expression of the burden is silent, simply because it is crowded out by the state assuming its role in addressing the burden. This leads to, often times, a compulsion to discover a second set of moral constructions, laden with principles of pragmatism and instrumentality, which can more easily be adhered to at a macro level. At the micro level, an inevitable lack of a universally binding ethical framework due to existing blind spots within the theories leads to the failure of academic inquiry, and politics win. These gaps become the reasons for inaction and justify the indifference of nation-states. Consider the idea of ‘intergenerational equity’. Even by Rawl’s own account, any ethical construct has to be stretched far beyond its capacity to support the case of intergenerational equity.5 He clearly states that ‘it is now clear why the (max–min criterion) does not apply to the savings problem … Thus the problem of savings should be treated in another fashion’.6 He carves out a somewhat vaguer principle where the determinant of whether and how much one should save for future generations is what each generation can legitimately demand of its ancestors.7 This runs 4 Matthew Peterson, ‘Principles of Justice in the Context of Global Climate Change’, in International Relations and Global Climate Change, ed. Urs Luterbacher and Detlef F. Sprinz (Cambridge, MA: MIT, 2001). 5 John Rawls, A Theory of Justice, 1 ed. (Harvard University Press: Harvard University Press, 1971): 284. ‘… the question of justice between generations … subjects any ethical theory to severe if not impossible tests …’ 6 Ibid. 7 Robert Solow, ‘Intergenerational Equity and Exhaustible Resources’, Review of Economic Studies 41 (1973).

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into difficulty when one cannot be sure if previous generation did save for its descendants, or how should we respond to the past generations not having saved for us.8 Notice that this is true for the state as a subject, rather than the individual. It cannot be conclusively determined what a society has demanded of its ancestors, and what may be demanded of it by forthcoming generations, given the heterogeneity of family units in any society. At the unitary level however, such an answer can easily be sought. If I know what my parents and grandparents did for me, perhaps I can strive to do a little better for my children. In fact, at individual level, I do not even need to engage with a theoretical framework. If I have children, I will see sense in offering them a better world. It happens all the time, from slums in Mumbai to penthouses in New York. Parents do not need to be convinced to make the world a better place for their children. One may remind us here of the problem of non-identity,9 which tells us that if we change today’s conditions for future generations, then it changes the future generation itself. In other words, changing conditions today is not affecting the generation of tomorrow that we had in mind, because with changed condition, a new generation is born, which was not intended to be our beneficiary in the first place. Notice that this is true at macro level, but at individual level, regardless of whether the child born was the intended beneficiary or not, so long as it is my child, there is little difference the non-identity issue will make to me. Intergenerational equity also runs into a head-on collision with the problems of non-reciprocity.10 Reciprocity-based accounts of justice question those of our actions that lead to considerable harm or good to our descendants, when they are never going to be in a position of reciprocating us. Again, this might not be true at individual level – many non-western societies where most people remain outside state support and insurance, crucially depend on the family’s younger members to support the older ones. This may or may not be cultural, but it surely helps build intergenerational equity at unitary level. The ‘Precautionary Principle’ – however compelling in advising us to not let uncertainty be the reason for inaction – remains nebulous, in not advising how much caution is needed.11 It has been shown to behave incoherently12 and unscientifically.13 It remains as a museum entity in legal repository and is taken out for usage, only at the fancy of political will. ‘Backward-looking considerations’ are mighty philosophical arguments, unanimously arguing that developed countries – being historically responsible for the problem – must take the lead role in reducing their emissions.14 However, in absence of knowledge regarding negative implications of emissions can those who polluted in the past be morally liable? The links between emissions and climate change were not clear until 1990 and it is unclear whether emissions post then should be 8 Partha Dasgupta, ‘Exhaustible Resources’, in Cost–Benefit Analysis, ed. Richard Layard and Stephen Glaister (Cambridge: Cambridge University Press, 1994): 107–108. 9 Derek Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984): 352. 10 Edward A. Page, Climate Change, Justice and Future Generations (Cheltenham: Edward Elgar Publishing, 2007). 11 Daniel Bodansky, ‘Scientific Uncertainty and the Precautionary Principle’, Environment: Science and Policy for Sustainable Development 33, no. 7 (1991): 8. 12 Martin Peterson, ‘The Precautionary Principle Is Incoherent’, Risk Analysis 26, no. 3 (2006). 13 John Harris and Søren Holm, ‘Extending Human Lifespan and the Precautionary Paradox’, Journal of Medicine and Philosophy 27, no. 3 (2002); David B. Resnik, ‘Is the Precautionary Principle Unscientific?’, Studies in History and Philosophy of Science Part C: Studies in History and Philosophy of Biological and Biomedical Sciences 34, no. 2 (2003): 331; Per Sandin, ‘Dimensions of the Precautionary Principle’, Human and Ecological Risk Assessment: An International Journal 5, no. 5 (1999): 294. 14 Stephen M. Gardiner, ‘Ethics and Global Climate Change’, Ethics 114, no. 3 (2004).

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considered morally (more) wrong as compared to the oblivious emissions earlier.15 Considerations of practicality bolster such objections to historical emissions too.16 Strict adherence to this principle forces us to see who is paying – those who emitted and indeed contributed to the problem are long dead. There seems to be something wrong in taxing those who were simply born in the regions where the ‘wrongdoers’ existed. More importantly, given the changing international borders across the nineteenth century, how do we find the very nationals who should pay more since their forefathers extracted more? Refuge in the principle of ‘ability to pay’ offers some hope. In an efficiency-driven justice system, blindness to history is useful. On such forward-looking proposals, parties having the most resources should contribute most to the exercise.17 But then, should not one differentiate between nations having the most resources and nations having excess capacity? Not necessarily all rich countries are rich enough, and what moral compulsion should lead them to cut down on a standard of living that is only comparatively high?18 More importantly, how can a rich country’s moral obligation not feel lesser if it is compared with another equally rich country that is also a significantly higher emitter? Alternatively, how can ability-to-pay directly synonymize with ‘responsibility to pay?’ ‘Beneficiary pays’ principle attempts to marry the ‘historic responsibility’ and ‘ability to pay’, fairly securely. But then, one can always claim that all nation-states have benefitted from industrialization (and hence emissions).19 Benefits – however small – may have positive externalities that spill over national boundaries (think about imports and exports and knowledge osmosis). Often times, these benefits were received by countries that would not be major emitters. And needless to mention, the problems of non-identity and non-reciprocity plague the universalizing form of beneficiary pays principle.20 Interestingly, even here, these principles of historical emissions, ability to pay and beneficiary pays seem to break down the moment nation-states are the subjects. For at individual level, the historical actor, the one with ability and the beneficiary is the same. They cannot be aggregated in the way the international community and even policy-makers consider so safe. In fact, the principles begin at aggregated national level, which is a conceptual folly. These principles begin at the level of individuals and then are possibly aggregated to societal level. The bigger we get in this process, the less these principles hold traction. I dwell on this in the next section. In any case, most ethical maps may persuade us to point directions of liability towards the industrialized west. But the reality is that a great amount of emissions today come from developing and fast-growing economies like China and India. If the goal is to reduce emissions, none of these ethical guidelines pushes a moral burden on countries like China and India to reduce their emissions. In essence therefore, unsurprisingly, the developed world has argued that countries 15 Dale Jamieson, ‘Climate Change and Global Environmental Justice’, in Changing the Atmosphere: Expert Knowledge and Global Environmental Governance, ed. P. Edwards and C. Miller (Cambridge, MA: MIT Press, 2001); Peter Singer, ‘One Atmosphere’, in One World: The Ethics of Globalization (New Haven, CT.: Yale University Press, 2002 2002); Simon Caney, ‘Cosmopolitan Justice, Responsibility, and Global Climate Change’, Leiden Journal of International Law 18, no. 4 (2005). 16 Martino Traxler, ‘Fair Fair Chore Division for Climate Change’, Social Theory and Practice 28 (2002). 17 Henry Shue, ‘Global Environment and International Inequality’, International Affairs 75, no. 3 (1999). 18 Edward A. Page, ‘Distributing the Burdens of Climate Change’, Environmental Politics 17, no. 4 (2008). 19 Shue, ‘Global Environment and International Inequality’. 20 Page, ‘Distributing the Burdens of Climate Change’.

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which are major emitters today, regardless of their past, must arrest their tendency to high levels of emissions.21 This principle, however, treats subsistence emissions and luxury emissions equally.22 Further, there is no discussion of historical emission here, which again increases the share of poor countries in the struggle.23 The argument on the other side is simple and defensible. The atmosphere belongs to everyone, and if the claim over it is equal at individual level, the appropriate focus should be on per capita emission, rather than nationwide emission. This looks very convincing, but it effortlessly absolves China, India and other such countries of a significant part of their share of the burden. And we know that unless developing nations also contribute to climate change efforts, they will themselves be hit harder. One may note that when poor countries are absolved of their burden, rich people of that country are too. A quick look at what policy formulations have seen light of the day and what goes on in conference rooms to implement those formulations will reveal a dismal picture. (Most of) the world in the last quarter century has been able to finalize on the rubrics of carbon emission trading and carbon offsets to address climate change concerns, and none of these structures are built closely on any of the ethical architecture discussed above. In fact, they rely on market-based mechanisms to incentivize countries to emit less. There are grave philosophical problems with these approaches. Sandel24 has maintained that by putting a price on something that should inherently be an ethical impulse, society legitimizes its immorality. In climate change parlance, emission trading strips off the ethics of protecting the environment, and creates a wrong signal that, by paying a price, unethical conduct simply converts into a costly conduct.25 It also plasters a price tag over atmosphere that ought not to have any ownership structure.26 And indeed, these mechanisms crucially hinge on integrity of governments around the world, which is clearly questionable.27 The Need for Shifting the Axis of our Inquiry and Where to Shift it To It is no surprise then, in terms of emissions, that little has been achieved. In terms of devising alternative better strategies, sufficient ‘energy’ has been spent in bringing representatives from various countries to various fancy places, without any tangible output. Concentrations of carbon dioxide (80 per cent contributor to GHG and global warming) have increased at its fastest rate for 30 years in 2013.28 Between 1990 and 2013, the warming effect on the planet (radiative forcing) 21 Singer, ‘One Atmosphere’, 30. He quotes George Bush, ‘I’ll tell you one thing I’m not going to do is I’m not going to let the United States carry the burden for cleaning up the world’s air, like the Kyoto Treaty would have done. China and India were exempted from that treaty. I think we need to be more even handed’. 22 Gardiner, ‘Ethics and Global Climate Change’, 584–85. 23 Simon Caney, Justice Beyond Borders: A Global Political Theory (Oxford and New York: Oxford University Press, 2005): 132. 24 Michael J. Sandel, What Money Can’t Buy: The Moral Limits of Markets (London: Penguin Books, 2012). 25 Ibid. 26 Simon Caney and Cameron Hepburn, ‘Carbon Trading: Unethical, Unjust and Ineffective?’, Royal Institute of Philosophy Supplements 69 (2011). 27 John Broome, Climate Matters: Ethics in a Warming World (New York: W.W. Norton & Company, 2012): 94–95. 28 See ‘Greenhouse gas emissions rise at fastest rate for 30 years’, The Guardian, 9 September 2014, available at http://www.theguardian.com/environment/2014/sep/09/carbon-dioxide-emissions-greenhousegases (accessed 25 May 2015).

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has increased by more than a third.29 And then, the nineteenth Conference of Parties (COP) in Warsaw reflected how entrenched the power games and lobbying had become – high drama with developing countries lamenting inaction by the Western nations, a walkout of civil society organizations, the Polish environment minister losing his job, a war of words and no deliverable on a global agreement to keep the temperature rise below 2 degree Celsius and the climate financing that poor countries wanted.30 Surely, there was an emotive inauguration with a speech on typhoon Haiyan. And then it was ‘business as usual’. So we arrive at a disappointingly ugly point, where the lack of all-powerful ethical theory leads to policy-makers oscillating between the frameworks of equity and markets. The problem in implementation of an equity principle – however decided – boils down to allocation criteria. All ethical principles tend to be assumed to operate at state level. In other words, the fact that action can be taken only by nation-states is assumed so safely that governments appear as the only players in the equation. It is ironical that the Anthropocene era is marked by the idea of anthropomorphising nation-states, and institutionalizing all of its citizens. Governments around the world focus on how should nation-states drive their emission, without reflecting on the considerable heterogeneity within each country (as regards class for example), which may not be represented equally by the governments.31 As such, the entire discussion on climate change has squarely rested on the divide between rich nations and poor nations, without considering that there are rich within poor nations and poor within rich nations. Few scholars have noted that there is north within the south and south within the north, thereby necessitating the need to see a cross-navigating victimhood across international borders. And while the souths of the world are primary and voiceless victims, the norths of the world are singular beneficiaries. It makes sense, therefore, to dilute the international boundaries and unbundle the concept of nations. We arrive at units of society, families and individuals. It is these units whose contribution, benefits and abilities must be considered, and an intra-generational and intra-national policy must be carved out. The locus of real responsibility is not in New Delhi, Beijing, London or Washington DC. It lies in the hearts and minds of people. And it is there, where we need to dig into. We must recognize that even though nations – rich and poor alike – are willing to cooperate to mitigate climate change, their consent is only voluntarily. Their cooperation follows Westphalian principles, in which obligations are consensual and no supranational institution can unilaterally or legitimately bind states to comply with any action the state has not expressly committed to.32 Ethical impulses push the developed world to take lead, but let us be mindful of the fact that in absence of appropriate enforcement, lack of political will of the west is only going to harm the non-west. Climate change agreements are not enforceable by third parties33 and need to be selfenforceable. Such self-enforcement is natural only when risk is clearly and visibly present in the near future, stakes are low and when incentives to free-ride do not exist.34 Sadly, climate change risks are situated far ahead in time, mitigation strategies are expensive and incentives to free-ride 29 Ibid. 30 Indrajit Bose, ‘Power Games at UN Climate Talks’, Down to Earth 15 December 2013. 31 Jouni Paavola, ‘Seeking Justice: International Environmental Governance and Climate Change’, Globalizations 2, no. 3 (2005). 32 William D. Nordhaus, ‘Global Public Goods and the Problem of Global Warming’ (Toulouse: Annual Lecture at the Institute d’Economie Industrielle, 1999): 4. 33 Scott Barrett, Environment and Statecraft (Oxford: Oxford University Press, 2003). 34 Jason F. Shogren and Michael Toman, ‘Climate Change Policy’, in Resources for the Future Working Paper No. 00–22 (Washington DC, 2000): 30.

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are high. Moreover, while mitigation costs are thickly concentrated on the acting nation, benefits are thinly shared by everyone. This indeed builds a case for ethics as the guiding principle for collective action. But given the competing claims and failed negotiations discussed above, we need to appreciate the value of ethical pluralism.35 But why plurality at the level of nation-states only? Distributive ethics among states ignore the fact that residual claimants of justice are individuals and local communities. Sen argues that process of anthropomorphising nations is a ‘fantasie’ that distorts sub-national and inter-individual issues.36 Therefore sub-national circumstances are crucial to study and mitigate climate change, and it is there where ethical plurality should be located. More importantly, focus on individuals rather than nations helps us avoid the pitfalls of moral imperatives being stretched to their limits. Any ethical consideration related to climate change will fit the society without much compromise. The ultimate source and destination of justice lies in the interest of individuals, and hence, such an ethical account passes the test of intuitive appeal very well. It is also morally pluralistic and less vulnerable to costs of political sovereignty of countries. It also has a normative backing of Raz’s37 ‘interest-theory’ of rights, which suggests that all persons have a right not to be suffering from climate change – suffering which militates against their basic interests. The idea is also intuitively appealing. If, for example, those that emit less than the world average be exempt from burden sharing, then India and Brazil will be exempt. However, with this, approximately 50 million people in Brazil and 35 million people in India who emit more than the world’s average will also be exempt; and in China, whose emissions exceed the world’s average, 800 million people who do not emit more than the world average will have to suffer the consequences of mitigation costs.38 It seems unreasonable indeed. This is what averages do. They dilute the plurality, and it becomes imperative to examine the deviations that these averages hide. A micro-level targeting helps avoid such oversights. In addition, the moment we as decision-makers focus on specific individual units, we avoid going into troublesome nuances of intergenerational equity. Recent studies have shown that intergenerational income and mobility around the world has remained fairly immobile, indicating that our income and social mobility levels are significantly determined by our parents’ (ancestors’) income and status.39 The idea is that societies are often persistent in their social and income mobility. There is a high likelihood that the rich today had rich parents, who had rich parents too. This likelihood reduces with each successive generation, but broadly, a rich family can be safely assumed to have rich ancestry. There is an extensive literature that shows it with interesting findings. For instance, studies have shown that having a certain surname – which enables us to keep ancestry fixed, somewhat – could be a proxy for high (or low) levels of income and social mobility. Hence, if families are high emitters, it may not be entirely unfair to impose an intergenerational liability on them, and therefore mandate their proactive stand in addressing climate change. Ascribing 35 I borrow and morph ‘value pluralism’ from Isaiah Berlin, which in many forms, indicates that there is no single right answer. 36 J. Eyckmans and E. Schokkaert, ‘An “Ideal” Normative Theory for Greenhouse Negotiations’ (Leuven: Katholieke Universiteit, 2003): 14. 37 Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986). 38 Narasimha D. Rao, ‘Distributional Impacts of Energy Policies in India: Implications for Equity in International Climate Change Agreements’ (Stanford Digital Repository: Stanford University Press, 2011). 39 This debate began with Solon (2002), who showed that America is not as mobile intergenerationally as thought earlier. See also, Anders Björklund and Markus Jäntti, ‘Intergenerational Income Mobility and the Role of Family Background’, in Oxford Handbook of Economic Inequality (Oxford Oxford University Press, 2009).

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historical responsibility at individual levels is far more convincing philosophically than at the national level, where even poor citizens pay a huge price for their nation’s climate change austerity, when only the rich should be doing so. The expected transfers then could easily be intra-national, which are easier and morally more justifiable to implement.40 The idea of locating responsibility in individuals rather than countries has been discussed in other dimensions.41 But such treatments remain unclear in clarifying the weights on responsibility and operationalizing aspects. I argue for building people-centric climate change endeavours through three distinct directions. The first one is merely an interpretation, but offering powerful lenses to view the debate. The second and third illustrate and exemplify possible ways in which individual focus of state-based policies can be carved out. Invoking Integrity Considerations We can express the thematic shift of focus from nation-states to individuals by invoking concepts of integrity of climate change. This not only shows the fertility of an integrity-based approach but also offers a neat understanding of complex shortcomings. One particular manner in which problem is manifested today, is that the global carbon regime’s coherence-integrity is fundamentally broken because of its betrayal to its public institutional justification (PIJ).42 As recounted in the ‘Comprehensive Integrity Framework’ of Chapter 2, the PIJ stands for what an institutions’ members use to justify the institution, and to garner public support for itself.43 As an institutionally constructed but socially manifested value, the PIJ is a set of core commitments that the institution publically asserts to profess thus establishing its need for existence. Since an institution is nested within a social space and inevitably depends on the latter for its activities, the PIJ becomes the core part of institutions’ integrity and transparency.44 One is clearly not wrong in considering that institutions need PIJs more than persons, given how they need society to offer them different privileges in the absence of any intrinsic worth that they may have.45 In this context, coherence-integrity becomes particularly important. Coherence-integrity matches the personal values of institution’s members and its PIJ, in addition to the coherence of internal organizational arrangements that promote the PIJ. Wueste46 argues that ‘in order to achieve the purpose, one has to comply with the normative constraints intrinsic to the enterprise, which is essentially the task of maintaining its integrity’. In this sense, the institution’s loses coherence-integrity if ‘its practices or procedures predictably undermine the pursuit of the very goals in terms of which it justifies its existence’.47

40 However, studies also note nontrivial cross-country differences in assessing socio-economic mobility. But these differences are not profound enough to challenge the imperatives that the rich ought to take significantly higher roles in reducing emissions. 41 Caney, ‘Cosmopolitan Justice, Responsibility, and Global Climate Change’, 767–69. 42 I thank the editors for pointing this out to me. 43 Noel Preston, Charles Sampford, and Carmel Connors, Encourging Ethics and Challenging Corurption: Reforming Governance in Public Institutions (Sydney: The Federation Press, 2002): 47–48. 44 Allen Buchanan and Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics and International Affairs 20, no. 4 (2006): 422–23. 45 Preston, Sampford, and Connors, Encourging Ethics and Challenging Corurption: Reforming Governance in Public Institutions 3, 39. 46 Daniel E. Wueste, We Need to Talk … About Institutional Integrity (New York: RIT Press, 2005): 27. 47 Buchanan and Keohane, ‘The Legitimacy of Global Governance Institutions’, 423.

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The framework of global carbon regime (or say the UNFCCC) has paralysed its coherenceintegrity, in the stated goal of preventing global warming. The members of the institution, the nationstates, fail to produce a set of values necessary for achieving the PIJ. The focus on nation-states develops organizational arrangements that militate against appropriate and unanimous execution of steps towards realizing the PIJ. The ethics that form the bedrock of PIJ of the UNFCCC are inherently individualistic in nature, and yet, the activities are essentially state-centred. This creates a disjuncture between the PIJ and the institutional coherence of UNFCCC. It is very important therefore, to drive the PIJ through the granular individualistic motivation for coherence-integrity, where capacity can be more wilfully be built. By focusing on micro-constituents, I am also embedding integrity concerns in the architecture of my work. When focus lies at the level of individualized institutions, integrity is relocated in the framework, which is critical for any sustainability apparatus of governing societies.48 The values held by institutions are employed through the lens of its internal arrangement, since it is at the organizational level that commitments of the individual/institution grow. Since institutions are nested within the larger regime of players, their adherence to integrity assumes a cultural significance and hence becomes rational. At the level of individuals, the discussion above helps us excavate preferences, willpower, persona and morality from the decision-making, and encourage us to adopt modes of governance that affect these values positively.49 The need to perceive and realter core commitments is the key to align culture with nature. Such deconstruction and reconstruction is unaffordable at the level of nation-states. We need atomized reactants. And we need to enable the change to take place from within, deep down. Such a change not only promises a more sustainable future, but also inculcates a value system that respects our relative location to each other. Focus on Domestic Institutions We need to focus more closely on each country’s climate change institutions, rather than its obligations. This allows us to exercise implementation and effectiveness, keeping in mind the target audience. Nation-states may decide their obligations to themselves not in terms of allocation, but in terms of institutional design. Often, the problem lies in faulty institutions rather than the intention of the policy and its framework. With a little tweaking and more careful and systematic analysis of impact evaluation, the efforts of mitigation can be directed towards achieving a more equitable distribution system in climate change. Such institutional alteration can be done at the level of crafty design. Policies can be designed to act in favour of the poor, particularly those that have direct or indirect impact on climate change. Given that pockets of poverty exist in rich countries and pockets of rich in poor countries, such exemptions necessarily have to be creatively designed to ensure that distribution impacts of such policies do not adversely affect the poor, and are only targeted at the rich. In the absence of broad-based redistribution policies, the customized regulatory policies can cushion the impact of climate change mitigation on poor. If countries can take care of their own poor alone, and have their own rich compensate to their poor counterparts, significant gains can be made.

48 From Graham (2001), I gather that regardless of whether we discuss organizations or persons, integrity system can be used to explain both of them interchangeably. 49 Robert Audi and Patrick E. Murphy, ‘The Many Faces of Integrity’, Business Ethics Quarterly 16, no. 1 (2006).

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This focus on domestic institutions does indeed implicate state-based policies. The trick is to realize the origin of the policies. These policies emerge from the government specifically tailormade for its citizens/population. The policies that emanate from the international framework, to the contrary, trickle down to the nation-state level and assume its transmission to the populace. Hence, focus on domestic institutions, despite being state-based, are actually converging at the individual level. Consider the example of subsidies on household energy, which has direct impact on climate change. Poor institutional design can militate against the very purpose of these policies, and often lead to environmentally disastrous situations. Rao50 offers an illuminating study on India, focusing on kerosene subsidies to households for cooking purposes. This has led to 1.5 per cent of the country’s carbon dioxide emissions, in addition to costing the country four to six billion US dollars annually and efficiency losses to the tune of one to two billion US dollars. As of now, the subsidy is not targeted. How then should government phase out these subsidies to discipline energy savings, while ensuring that the costs are not borne by poor? The design of subsidy instruments has considerable insight to offer. If one looks carefully at the distribution pattern of its subsidy, it is revealed that around 800 million people use it for lighting purposes and, of which, only 200 million use it for cooking (cooking is government’s primary purpose to offer subsidies on kerosene). In addition, almost 40–60 per cent of kerosene supply is diverted to other lucrative markets, forcing many consumers to buy it from the black market. The urban poor use it for cooking, while the rural poor use it for lighting. Also, studies note that, in urban parts, the subsidy on kerosene is progressive and offers benefits of up to 5–10 per cent of household expenditure in poor households that lack affordable access to LPG and biomass.51 In this context, it makes more sense to phase out the subsidy in rural areas, and change the allocation quota of kerosene to reflect household needs – cooking in urban and lighting in rural areas. This will have massive energy savings without affecting the poor adversely.52 Another example can be derived from Ghosh and Kathuria.53 There is an enormous gap between electricity demand and supply in the Indian power grid impacting growth, social welfare and the environment negatively. A sector that is impacted severely is small and medium-sized industrial manufacturing firms or enterprises. In order to address this, the Electricity Act 2003 has provision for incentivizing private industrial self-generation of electricity through setting up a captive power plant. Yet, given the enormous investment required and other factor constraints in setting up captive power plant, small and medium-sized enterprises are often incapacitated. One can set up pooled groupCPP in areas of industrial clusters where individual firm-level constraints are high, through private financing and co-financing mechanisms using a Special Purpose Vehicle. Such an institutional policy will not only attract more growth, but also offer enhanced carbon credits. Changing the Vocabulary The second way to drive the implementation programme lies in changing the vocabulary so that environment discourse is embedded within developmental concern. This makes the rich become 50 ‘Distributional Impacts of Energy Policies in India: Implications for Equity in International Climate Change Agreements’. 51 Narasimha D. Rao, ‘Kerosene Subsidies in India: When Energy Policy Fails as Social Policy’, Energy for Sustainable Development 16 (2012). 52 ‘Distributional Impacts of Energy Policies in India: Implications for Equity in International Climate Change Agreements’. 53 ‘The Transaction Costs Driving Captive Power Generation: Evidence from India’, Energy Policy 75 (2014).

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proactive in addressing climate change issues (rather than reactive, which they presently are). Climate change vocabulary needs to shift its focus from harms to benefits. And these benefits make economic sense too. There is no reason to incentivize people to emit less. If using better technology is only more beneficial for their business, then there is no need to create incentives for climate change. One needs no incentive to earn more money. At a much broader level, the Indian Government’s National Action Plan on Climate Change proposes this idea in the form of ‘cobenefits’, also articulated in detail by Dubash and his co-authors.54 In essence, it encourages efforts that ‘promote our development objectives while also yielding co-benefits for addressing climate change effectively’.55 Such a policy refines domestic policy-making, pushes for development objectives and at the same time remains useful to its commitment to reducing emissions. The decision-making becomes streamlined, targeted and enjoys considerable support both domestically and internationally. Many policy formulations can simultaneously aim to reduce poverty or enhance growth potential, and reduce emissions. Their implementation does not attract the scary propositions of high costs whose unintentional distributions spill over to the poor population. Because emission reduction is invariably linked to the developmental objectives of such policies, we change our vocabulary from restrictions in favour of climate change to enabled access for developmental objectives. Emission reduction acts as a by-product anyway. Psychological bottlenecks to these efforts go away. Consider another example where we select alternative indicators for estimating the same variable. Currently, poverty indices are based on income measures of varying kinds. This is because of a general belief that a person’s income is a very close reflection of their well-being. However, careful investigation and recent economic research has revealed that consumptionbased poverty expenditure reflects much more closely who is the most disadvantaged, rather than income measures.56 Consumption denotes a person’s real options and choices, which are crucial to incorporate a capability approach to climate change issues.57 Income as the indicator of poverty ignores that income may not denote wealth, which may arise from a person’s ownership in other assets. Such differences in developing countries could be of significant proportions. Consumption behaviour and expenditure data on the other hand offers a very realistic account of whether a person’s purchasing ability is merely subsisting, or lies in luxurious zones. Such an analysis not only separates the rich from the poor in a given society more neatly, but also offers a glimpse into the world of luxury living alongside that of misery. Taxation policies then become easier to design and are more targeted. Change of variables may shift the intensity of the burdens that the rich share for addressing climate change. And this shift will be closer to a more ethical view of the obligations – we want those who consume more to share higher burdens, rather than those who earn more. Consumption patterns also turn the focus of source, because then we understand not from the producer’s perspective but from the consumer’s. What matters then is not how much a country produces but how much it consumes, regardless of whether its consumed products are manufactured within its own territories or not. If one looks at emissions owed to a country 54 Navroz Dubash et al., ‘Indian Climate Change Policy’, Economic and Political Weekly 48 (2013). 55 Government of India, ‘National Action Plan on Climate Change (NAPCC)’ (Prime Minister’s Council on Climate Change, 2008): section 2, http://www.c2es.org/international/key-country-policies/india/ climate-plan-summary (accessed 19 May 2015). 56 Bruce D. Meyer and James X. Sullivan, ‘Identifying the Disadvantaged: Official Poverty, Consumption Poverty, and the New Supplemental Poverty Measure’, The Journal of Economic Perspectives 26, no. 3 (2012). 57 Amartya Sen, ‘Development as Capability Expansion’, in Readings in Human Development, ed. Sakiko Fukuda-Parr and A.K. Shiva Kuma (New Delhi and New York: Oxford University Press, 2003).

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(accounting for export and imports), Belgium tops the list, with USA in the second spot (China is seventh and India, ninth).58 Within the country, similar surprises may emerge. Domestic policies can then take such data into account. Another way to explain the point is to distinguish between a justice approach as opposed to the presently ordered political approach through which carbon debate takes place.59 Shifting the focus from politics to justice helps us build our arguments for energy justice (access to safe and renewable energy for everyone), let’s say, rather than energy efficiency. Global governance and global justice are very different analytically yet presuppose the coexistence of each other. But the vocabulary for governance masks the heaviness of justice in the process. In the same way, we need to carve out the centrality of justice in the discourse of global climate change. Regardless of how much ‘justice’ is captured in the idea of ‘governance’, separating the two helps us identify (and guide) a given policy’s direction and its focus. Secondly, and perhaps more importantly, distinctions as regards justice helps advance the agenda at micro levels, amongst individuals, and aggregates at the level of state. International architecture needs to evolve a tone that discovers its rhythms of justice with notes of individualistically valued components of justice. Conclusion This chapter attempts to achieve two goals. First, exposing the cracks in existing theoretical accounts of ethical discourse on climate change and the hollowness of international negotiations, this chapter is a step towards encouraging us to think in alternative directions. Second, it suggests one such direction could be to tilt our focus from nation-states as actors to individual units (individuals/family/corporation) as the primary drivers through which climate change mitigation can be pursued. In doing so, it places special emphasis on targeted policy frameworks, so that the rich in a country pay for the poor in the same country. The chapter then showed this may be possible by focusing on domestic institutional design and a vocabulary that deals with environment directly or indirectly. This is not to say that international concerted efforts should be abandoned, since international agreements have been pivotal in generating a global public opinion on the behaviour of nationstates. But international commitments can achieve little if domestic policies do not focus on individual decision-making. The chapter recommends that a domestic-institution-centric approach, which emphasizes social units as decision-makers, needs to complement policy-making at the international level. It is imperative to see the value of addressing climate change mitigation efforts by the micro constituents of society. By 2030, two-thirds to three-quarters of global emissions will be from large developing economies, who will need to act to save themselves. But because the majority of the world’s poor live in transition economies, we cannot ignore the distributional impacts of climate change policies that are implemented at the national level, nor can we develop an oversight to carving out exemptions to the world’s poor while drafting blanket policies for entire nations. The micro focus necessarily needs to complement the order of any analysis.

58 Data refers to 2008. See, Glen P. Peters et al., ‘Growth in emission transfers via international trade from 1990 to 2008’, http://www.pnas.org/content/suppl/2011/04/20/1006388108.DCSupplemental (accessed 25 May 2015). 59 I thank the editors for making this distinction visible to me.

Chapter 10

Polycentric Systems and the Integrity Approach Anne Schwenkenbecher

Introduction This volume is concerned with the integrity of the global climate regime, that is, the extent to which the global system of the United Nations Framework Convention on Climate Change (UNFCCC) institutions and mechanisms aimed at addressing climate change acts according to its public institutional justification (PIJ) and as well as with the values which do or should form part of that justification. The starting point of this chapter is the observation that at the global level the climate system is failing to produce the outcomes it was set up to produce and as such is lacking consistency-integrity. That is, it is failing to act in accordance with its PIJ and the values embodied in it. However, emerging so-called polycentric systems are increasingly successful at addressing the challenges of global climatic change, according to economist Elinor Ostrom.1 The aim of this chapter is to discuss the possibility of applying the integrity approach to polycentric systems, which comprise a multitude of institutional, corporate and individual agents not all of which have a clear public institutional justification. The Problem One thing to note on the outset is that any debate about combating climate change is necessarily a debate about morality and justice. Moral values and principles of justices – hereafter referred to in short as ‘values’ – are essential to understanding why climate change is a problem and how it should be addressed. In other words, in identifying climate change as a problem and addressing it, one must talk about values. To recognize climate change as a problem means to recognize it as a moral problem and a problem of justice. Why do we address climate change at all? Because we believe that if we do not address it many people will end up living worse lives than they could live. Because we hold that it is not fair to leave future generations a planet with an instable climate, depriving them of the kind of life we can enjoy now without fault of their own. Because, roughly speaking, we accept that people have an obligation to prevent avoidable serious harm if they can. Addressing climate change includes addressing mitigation, adaptation and compensation. In this chapter, for simplicity’s sake, I will focus on global efforts to mitigate climate change only, and leave the two other important tasks, adaptation and compensation aside. However, much of what I say here about mitigation will apply to the other two sets of problems, too. Mitigation concerns the reduction of factors that trigger climate change, including the emission of greenhouse 1 See, Elinor Ostrom, ‘Toward a Behavioral Theory Linking Trust, Reciprocity, and Reputation’, in Trust and Reciprocity: Interdisciplinary Lessons from Experimental Research, ed. Elinor Ostrom and James Walker (New York: Russell Sage Foundation, 2003); ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’, Global Environmental Change 20, no. 4 (2010).

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gases (GHG), deforestation and meat production. From a moral point of view, there is no doubt that, collectively, climate change ought to be mitigated.2 But when we ask the question of how we ought to mitigate we enter yet another normative debate concerning fairness in the process of mitigating.3 It can easily be seen that climate governance, the use of policy tools (including legislation, regulations, the establishment of institutions and organizations) for addressing climate change, including mitigation, necessarily involves value-sensitive decisions at all levels. The integrity approach and the Comprehensive Integrity Framework,4 upon which this collection is focused, provides a tool for analysing the extent to which an institutional agent lives up to its PIJ. The integrity approach helps identify factors that trigger non-compliance with the institutional justification and the resulting failure to deliver on the values it reflects and embodies. The point of this volume is to discuss its applicability to the global climate regime – the existing UNFCCC-related institutions and their respective mechanisms. This also means to analyse to what extent the UNFCCC regime fosters those values or norms that are incorporated into its public institutional justification. The UNFCCC was founded with the goal of cooperatively considering what could be done ‘to limit average global temperature increases and the resulting climate change, and to cope with whatever impacts were, by then, inevitable’.5 The UNCCC website also states that the ‘ultimate objective of both treaties [the UNFCC and the Kyoto Protocol] is to stabilize greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous human interference with the climate system’.6 Let us assume for the purpose of the following discussion that these two statements express the UNFCCC’s PIJ or at least an important part thereof. It is obvious that, at the global level, the climate regime is failing to meet its purpose: the world appears to be heading towards levels of GHG concentrations in the atmosphere that are very likely to trigger dangerous global warming.7 So far, there is no binding global agreement on climate change, only a commitment to negotiate such an agreement to enter into power in 2020. Current voluntary mitigation commitments are insufficient for averting dangerous global warming beyond 2°C. As such, the global climate regime lacks consistency-integrity: its outputs (or actions) are not in accordance with the regime’s public institutional justification. This indicates not only 2 See my discussion of this question in Anne Schwenkenbecher ‘Is There An Obligation To Reduce One’s Individual Carbon Footprint?’, Critical Review of International Social and Political Philosophy 17, no. 2 (2014). 3 To address climate change, we need to ask further value-related questions. These are essential to determining the specific content of climate-related policy and agreements: how should the burden of addressing climate change be distributed? Who deserves support by others in order to combat climate change? Should economic development be sacrificed to emission reductions? Notions such as equality, desert and responsibility shaped the guiding principles for international climate regime such as the polluter pays principle, the beneficiary pays principle, general principles of distributive justice, and so on. See discussions in Simon Caney, ‘Just Emissions’, Philosophy and Public Affairs 40, no. 4 (2012); Edward A. Page, ‘Distributing the Burdens of Climate Change’, Environmental Politics 17, no. 4 (2008). 4 See Chapter 2. 5 UNFCCC, ‘Background on the UNFCCC: The International Response to Climate Change’ (2014), http://unfccc.int/essential_background/items/6031.php (accessed 5 May 2015). 6 ‘UNFCC Secretariat’ (2015), http://unfccc.int/secretariat/items/1629.php (accessed on 15 May 2015). 7 IPCC, ‘Summary for Policymakers’, in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, ed. Christopher.B. Field, et al. (Cambridge, UK, and New York, NY, USA: Cambridge University Press, 2014); UNEP, ‘Bridging the Emissions Gap Report: A UNEP Synthesis Report’ (2011).

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a lack of integrity, but it constitutes a major moral problem and injustice as it is causing ‘deadly delays’8 while collectively the world falls short of acting, the time window for averting dangerous global warming is closing and the potential consequences for current and future generations are worsening.9 At this point, a discussion of systems integrity can take a number of possible directions. One could discuss the factors stymying consistency-integrity of the international regime. As a result, we gain insights into why those institutions lack integrity. For instance, one of the main problems appears to be the fact that the Conference of the Parties (COP), the decision-making body of the Framework Convention on Climate Change, is composed of states, or rather their governments. Governments will often act in their own short-term political interest, rather than contribute constructively to the process of establishing a successful climate regime. However, the manifold reasons for the internal climate deadlock will not be discussed here, as other chapters in this volume have done this.10 Instead, this chapter will address two questions concerning the scope of the integrity approach: 1. How can we establish the consistency-integrity of the global climate regime given the regime is a kaleidoscope of institutions? 2. Can the integrity approach be applied to emerging polycentric systems? Of these two questions, the first will only be dealt with briefly, while the second will be this chapter’s main concern. Consistency-Integrity for a Kaleidoscope of Institutions An institution’s consistency-integrity is the degree to which the institution’s activities, actions and produced outcomes are in line with its PIJ. It is the measure of the extent to which the institution acts with integrity. It is easy to see how this type of analysis can best be conducted for a discreet institutional agent. I said earlier that the global climate regime does not currently have consistencyintegrity. And it is easy to see that that is true, simply by virtue of the fact that we currently have no binding global agreement that regulates emissions. But the opposite would be more difficult to establish: how do we find out whether the UNFCCC and its corresponding institutions do act according to its PIJ? The question arises because the UNFCCC apparatus is rather complex and the global institutions and mechanisms adopted are (or need to be) translated into national, regional and, finally, local measures. The participants in a potential future global climate agreement and respective global institutions are states or amalgamations thereof, such as the European Union (EU). In order to comply with emission targets, states must implement respective measures domestically. Does the integrity assessment stop at the national level or include it? Or, more generally, at which level should we make our observations of acts relevant to the UNFCCC climate regime in order to determine its consistency-integrity? Furthermore, whatever the aims determined in UNFCCC’s PIJ at the global level (see quotation above) – they will have to be embedded in national policy which addresses all sorts of problems, not just climate change. Rather, domestic policy measures will 8 Henry Shue, ‘Deadly Delays, Saving Opportunities: Creating a More Dangerous World?’, in Climate Ethics: Essential Readings, ed. Stephen M. Gardiner, et al. (Oxford: Oxford University Press, 2010). 9 See also Anne Schwenkenbecher, ‘Bridging the Emissions Gap: A Plea for Taking up the Slack’, Philosophy and Public Issues 3, no.2 (2013). 10 See, for example, Goyal, Chapter 9 in this volume.

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(ideally) be embedded into a larger context of domestic distributive justice: avoiding the income and wealth gaps to widen and ensuring that the already underprivileged are not made worse off. Both the multitude and variety of agencies and institutions and the mingling of global mitigation targets with domestic social and economic policy may make it hard to establish the consistencyintegrity of the UNFCCC regime down the track. However, those employing the integrity approach may simply have to assess each of the UNFCCC and Kyoto II mechanisms on their own merits and then in relation to the over-arching aim of mitigation (for instance). The assessment may have to stop at the national level given that the unit of agency in the international realm and the unit of GHG output continue to be states. Yet there is one interesting caveat: If – in a few years’ time with a binding mechanism in place – we assess the degree of GHG mitigation at the national level and find those emissions to be decreasing in line with the targets specified in Kyoto II, this would not necessarily mean that the reduction is due to Kyoto II measures. That is, in measuring purely the final result (of mitigation, for instance), we may not be able to draw a valid conclusion concerning the integrity of the global climate regime. This is because GHG emission reductions may have been produced as a result of entirely different mechanisms: They may be the result of polycentric action, for instance. Those using the integrity approach to assess the global climate regime will need to take that into account. I will turn to now to discussing the integrity approach in relation to such polycentric systems. Can the Integrity Approach be Applied to Polycentric Systems? The second and main question of this chapter concerns the suitability of the approach to assess the integrity of emerging polycentric systems. The fact that the global climate process has stalled does not mean that nothing is happening. Currently, climate action is taken at a multitude of levels despite the lack of a binding global agreement. A multitude of agents and measures at the individual, local, regional and state levels, as well as some in the private sector focusing on mitigation, are making (usually voluntary) contributions to solving the climate problem. This is what Elinor Ostrom calls evolving polycentric systems on climate action.11 Emerging polycentric systems form a significant part of the global efforts to address climate change. Ostrom argues that while an international treaty is a major step, we must also recognize the strengths of evolving polycentric systems in addressing global collective action problems such as climate change.12 According to Vincent Ostrom et al.,13 polycentricity is a scenario where ‘many centers of decision making that are formally independent of each other’ act towards providing a certain collective good. Polycentric initiatives to reduce GHG include local efforts such as US Conference of Mayors’ Climate Protection Agreement which included 1,026 cities at the time of writing, or the C40 Cities Climate Leadership Group, including cities from Africa, Asia, Europe, Latin America, and the US. In terms of US state-level efforts, Elinor Ostrom refers to the Californian ‘Global Warming Solutions Act’ in 2006, the Colorado State House Bill 08–1350 in 2008 and the Regional Greenhouse Gas Initiative (RGGI), on the US east coast.14 All of these initiatives attempt to commit to mitigation efforts where their federal government lags way behind. However, polycentric systems are not limited to agents and measures at the institutional or governmental level – individual actions are part of them, too: ‘instead of the benefits derived from 11 Ostrom, ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’. 12 Ibid. 13 Ostrom, V. et al., ‘The Organization of Government in Metropolitan Areas: A Theoretical Inquiry’, American Political Science Review 55, no. 4 (1961): 831. 14 Ostrom, ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’.

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reducing GHGs existing only at the global level, multiple benefits are created by diverse actions at multiple scales. Potential benefits are even generated at a household level’.15 Dietz et al. have identified 17 actions that can cumulatively have a major impact on carbon emissions.16 Ostrom17 believes that because actions at a local level are a major source of carbon emissions, mitigation must be tackled locally and that, in order to collectively confront global environmental challenges such as climate change, a so-called polycentric approach is needed. In sum, in the light of the current global deadlock, rather than relying solely on a global solution, we must address environmental change at multiple scales, including national and local levels. Despite the recently communicated willingness to finally tackle the problem at the G20 summit in Brisbane, it is reasonable to assume that global climate action alone will not be sufficient for adverting dangerous climate change (beyond 2°C) and that waiting for a global treaty will increase the risk of dangerous warming. While the ozone-crisis and subsequent international prohibition of chlorofluorocarbons seem to be a rare exception that proves the rule, tackling collective action problems at the global level is usually unlikely to succeed, especially if the problem is as complex as climate change. Ostrom believed that voluntary, polycentric action on climate change is the key to achieving substantial outcomes globally and that actions taken by multiple units can cumulate to reduce the threat of climate change: What we have learned from extensive research is that when individuals are well informed about the problem they face and about who else is involved, and can build settings where trust and reciprocity can emerge, grow and be sustained over time, costly and positive actions are frequently taken without waiting for an external authority to impose rules, monitor compliance, and assess penalties.18

She argues that the resulting organizations would in any case be involved when a global treaty comes into effect and must be broken down into domestic policy measures.19 If her analysis is correct, in order to effectively mitigate climate change we must not rely on global action and wait until an international agreement is reached but instead act at local, regional and individual levels. In fact, such polycentric action may be more efficient in achieving the desired outcome and it is already happening.20 15 Ibid., 553. 16 These include measures such as using low-flow showerheads, efficient water heaters, low-rolling resistance tires, and fuel-efficient vehicles, changing HVAC air filters and tuning up AC, routine auto maintenance, lowering laundry temperature and water heater temperature, turning off standby electricity, using line drying, changing driving behaviour as well as carpooling and trip-chaining. ‘[N]ational implementation could save an estimated 123 million metric tons of carbon per year in year 10, which is 20% of household direct emissions or 7.4% of US national emissions, with little or no reduction in household well-being’. Thomas Dietz et al., ‘Household Actions Can Provide a Behavioral Wedge to Rapidly Reduce US Carbon Emissions’, Proceedings of the National Academy of Sciences 106, no. 44 (2009): 18452. See also Kornelis Blok et al., ‘Bridging the Greenhouse-Gas Emissions Gap’, Nature Climate Change 2, no. 7 (2012). 17 Ostrom, ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’, 553. 18 Ibid., 555. On the feasibility and importance of polycentric action see also Daniel H. Cole, ‘Advantages of a Polycentric Approach to Climate Change Policy’, Nature Climate Change 5, no. 2 (2015). 19 Ostrom, ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’, 554. 20 Ostrom admits though that ‘Self-organized, polycentric systems are not a panacea’ – in her view there are no panaceas for complex problems such as global warming. Ibid., 555.

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But can the integrity approach be used for assessing polycentric systems? That is, can it help us diagnose and analyse the underlying problems of such systems? In the following, let me first discuss some of the challenges for applying the integrity approach to polycentric systems. Further down, I will consider a few potential solutions. The integrity approach is designed to analyse the integrity of individual institutions or systems thereof where there is one over-arching institution and several subsidiary bodies. It aims at mapping a single hierarchical institution and its sub-institutions, or at least a complex where there is a single dedicated organization whose purpose fixes the over-arching PIJ. The approach, as developed by Sampford and set down in the Comprehensive Integrity Framework, is in this respect a ‘top-down’ approach.21 This poses a difficulty for analysing polycentric systems. The activities of polycentric systems are not planned, controlled or overseen by one central agency, so there is no single or overarching PIJ that frames the purpose and goals of all those subsidiary ones which form part of this system. Polycentric systems address climate change from the bottom-up and, while they form part of the global mitigation efforts, those institutional and other agents that are part of such systems may have all kinds of PIJs or none at all. There is a multitude of diverse agents in polycentric systems, including individuals who tend to lack such justifications. The PIJ of the global climate regime’s institutions cannot be the standard of integrity all the way down to the individual agents participating in polycentric systems. Another challenge for the integrity approach may be that, while the institutions and mechanisms of the UNFCCC are single purpose in that they have been installed specifically to address climate change, polycentric institutions and agents engaging in climate change mitigation have all kinds of different purposes and PIJs, including some relating to climate change, but not only those. Can the integrity approach assess agents along a variety of such standards? In the global climate regime, there is one leading body, the UNFCCC with the particular PIJ it endorses. The coherence-integrity of the system can be assessed through the actions of the COP and all UNFCCC-related mechanisms, institutions and policies.22 However, there is no single PIJ for the multitude of institutions, agents and organizations in polycentric systems, nor are their individual PIJs (to the extent that they have one) usually merely climate change-related. Take, for instance, local governments: they must meet a whole range of values and principles and only some of the measures they adopt and actions they take will relate to climate change and its particular normative demands. In short, the global climate regime and its single-purpose institutions may successfully be assessed using the integrity approach. Using the approach for polycentric agents with multiple purposes and perhaps less specific PIJs may require to somewhat adjust the approach. The emergence of polycentric systems to cope with climate change mitigation seems to challenge the idea of a clear-cut integrity assessment and of a consistent enactment of a PIJ and its embodied set of stable values and principles. That is, we can only judge each agent on its own merits unless we find something that can play the role of an over-arching PIJ. I will get back to this issue in a moment. Here is another interesting caveat: Given that significant action is taken at the local, regional and national levels, the purpose of the UNFCCC could – theoretically – be achieved regardless of the deadlock at the global level, at least partially. But an integrity analysis of only those agents who have a PIJ would not reveal this. Many of the agents in polycentric systems have no PIJ, but their actions may well make a difference to the overall result of the process. One of the most obvious 21 Sampford, ‘Extending the Integrity Systems Approach: Global Financial Integrity Systems and Global Carbon Integrity Systems’ (Institute for Ethics, Governance and Law, 2014). 22 See Figure 2.2, Chapter 2.

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example are individual agents. Ostrom, as well as Dietz, seemed to think that individual agents are an important part of emerging polycentric systems for coping with climate change and that individual behavioural change can possibly play a decisive role in bridging the emissions gap and averting dangerous global warming.23 How would the integrity approach handle individual agents? This takes me to my brief discussion of how the integrity approach could be applied to polycentric systems. I believe that we can still use the integrity approach as a diagnostic tool even for decentralized agency as in the case of polycentric systems, assuming we are willing to make some modifications to it. Remember that the point of having an analysis tool like the integrity approach is to find out how institutions fail to meet their purpose and to determine the underlying causes. Out of the multitude of agents that are already contributing to mitigation and which are forming polycentric systems of climate action, some agents (institutional, corporate) will have particular PIJs, including those particular values or principles of morality and justice that they endorse. The integrity approach can be applied to these agents individually, assessing the extent to which each institution, organization or – more broadly speaking – agent forming part of polycentric systems comply with their own PIJ. As I said earlier, this will enable us to judge the integrity of the individual components (institutions, organizations and so on) of polycentric systems, but it will not necessarily give us an indication of how well a particular task, for instance climate change mitigation, is in fact being achieved by the system. How could the integrity systems approach handle the multitude of – often interconnected and mutually interdependent – agents and their varying – and possibly conflicting – sets of institutional justifications and corresponding levels and types of integrity? This question is closely related to another one: What are the limits, or boundaries, of polycentric systems? We can perhaps think of the polycentric systems addressing climate change mitigation as an – admittedly amorphous – non-hierarchical group of agents who share a common justification for their particular actions. In the context discussed here, this justification may be the goal to mitigate climate change, or more narrowly, to reduce GHG. It may be a public justification as in the case of the C40 Cities Climate Leadership Group or not as in the case of most individual agents. And it may be an institutional justification or not. Let us call it the shared justification. We may now draw the boundaries of our polycentric system along the lines of that shared justification. It cannot be a very clear boundary as we do not exactly know how many agents share the same justification for their actions and to what extent. But those with a public shared justification are easily identified. Remember that integrity assessments focus on a range of different aspects influencing an institution’s performance. We may now be able to focus on the different aspects of the system’s performance by focusing on agents that are clearly within the boundary. One important aspect to focus on is ‘context-integrity’: the qualities of the external environment that promote actions according to the shared justification. We can see that in polycentric systems in particular the independent agents form a mutually stimulating integrity context. That is, an awareness of the existence of agents who act upon the same shared justification fosters an environment conducive to other such agents. Ostrom emphasized in her work that building trust and face-to-face communication was decisive for the willingness of agents to cooperate.24 In some places this context-integrity can be disturbed by particular aspects of the environment in which the polycentric agents move, for example, where trust and the willingness to cooperate are being undermined. 23 Ostrom, ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’; Dietz et al., ‘Household Actions Can Provide a Behavioral Wedge to Rapidly Reduce US Carbon Emissions’. 24 Ostrom, ‘Toward a Behavioral Theory Linking Trust, Reciprocity, and Reputation’; ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’.

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Another interesting aspect of the integrity approach that may be applied to polycentric agents is the aspect of coherence-integrity. This aspect deals with those qualities of an institution that promote its acting according to its PIJ, covering both the internal organizational arrangements and the values held by its members. The integrity approach was originally developed on the basis of an account of integrity of individual agents. Perhaps in assessing polycentric system the individual and the institutional integrity perspective can be combined. We can see that, given the fluidity and high level of agent-interdependence in polycentric systems, the integrity of particular individuals would be especially important to the successful enactment of the shared justification. However, there are probably some insurmountable limitations to using the integrity approach for an analysis of polycentric systems. In particular, it is difficult to see how we could ever arrive at a conclusion about such systems having full integrity or not, that is, whether or not the system as a whole has coherence-integrity, context-integrity and consistency-integrity. In fact, we may have to accept that, due to their nature, polycentric systems may never have something like full integrity. In sum, while the integrity approach was designed as a diagnostic tool for institutional malperformance, aspects of it may well be applied to agents in polycentric systems. We can use it to focus separately on each of the collective, corporate and individual agents in such systems, but it may be possible to apply a modified version of it to such systems as a whole, using the shared justification of the different agents as a demarcation line. Conclusion Climate change mitigation is taking place at a multitude of levels – global, national, regional and local – and is performed by a multitude of agents – collective, corporate, institutional and individual. Collective, institutional and corporate action involving (often voluntary) commitments by the public and private sectors and by individuals form the global effort to address climate change. The integrity approach developed by Sampford is a very valuable tool in analysing the global climate regime and its underperformance. I briefly discussed the way in which the integrity approach could be applied to those regimes that are performing well, namely so-called polycentric systems. Perhaps a modified non-hierarchical version of the integrity approach can be applied to evolving polycentric systems, including to individual agents. This latter point is particularly important, as the problem of GHG emissions is a collective action problem in which individual behavioural changes – en masse – can make a real difference. In turn, individual behaviour and individual integrity are influenced by the particular local, regional and, finally, also the global contexts in which individuals act. Also, this discussion has shown that there is substantial interdependence between the integrity of the global regime and polycentric systems. Polycentric agents form part of the external context in which global and national institutions exist and which influences their consistency-integrity. Strong domestic and trans-national polycentric systems are likely to benefit the integrity of global and national institutions addressing climate change. In short, an analysis of polycentric systems is essential to an analysis of the global climate regime’s integrity.

PART III Social Norms in the Global Context

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Chapter 11

Eco v. Ego: Non-Anthropocentric Ethic in Anthropocene Epoch Vesselin Popovski

Introduction Ethical systems are normative, evaluating the merits of human action. Two questions arise from this … 1. How do individuals and institutions formulate and cohere to ethical values? 2. Do they act consistently in accordance with these values? This book addresses the two questions on the case study of the integrity of the global climate regime actors. This chapter elaborates on how the ethical values evolve in the climate change era, or what has now been defined as the ‘Anthropocene epoch’, the age in which the human imprint can change the geological destiny of coming centuries in ways adverse to the health and well-being of all forms of planetary life, including human life. It argues that ego-centric (or anthropocentric) values are not a sufficient ethical scope in the Anthropocene and that the public institutional justification (PIJ) should integrate eco-centric values. The Anthropocene epoch is radically different and transformative and what we need – in terminological paradox – is a nonanthropocentric, or eco-centric ethic. Reflecting the integrity triad from Chapter 2 of this book, this chapter appeals to build eco-centrism as an integral element of the ethical system (coherenceintegrity); act in eco-centric manner (consistency-integrity), and, create an eco-centric environment (context-integrity). The global institutional climate change framework needs to integrate its words, deeds, internal qualities and external environment. Yet questions remain how will the climate change – with its potential catastrophic consequences – affect our values? Will we, the people, and the institutions that we establish, be integrity-coherent? Will we act with integrity-consistency facing the climate challenges? This chapter argues that integrity cannot be morally-neutral. It does not look at integrity simply as possessing firm views, creating structures around these views and acting upon these views. If so, the Nazi regime would be an excellent demonstration of integrity – they had firm beliefs, created coherent governance structures around those beliefs, and acted consistently. The Nazi asked hard questions, gave consistent public answers and lived up to the integrity they created. This chapter adheres to a ‘clean hands’ notion of integrity, expecting integrity to do ‘good’, to be objectively ethically upright and virtuous.1 The second caution this chapter makes is not to over-rely on economics. The economists often advise to leave it to the market and its ‘invisible hand’ will fix all the problems. Some mitigation measures will have high economic cost, and conservative laissez faire economists may 1 Jody L. Graham, ‘Does Integrity Require Moral Goodness?’, Ratio 14, no. 3 (2001).

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not like them, but the environment cannot ‘be balanced against the economy’.2 The challenges of the Anthropocene are too big to be solved by classical capitalism, based on competition and profit-making. As Sampford put it brilliantly, integrity systems have an ‘ethical pull’ added to the ‘economic push’.3 The imperatives of growth, the narrative of ‘more and more’, that has driven the human progress for centuries, needs to be reframed by the narrative of ‘less and less’: low carbon, low energy, less natural resource extraction, less children, less consumption, low water-absorbing crops. Can policy-makers, institutions and corporations readjust to this transformative change, and understand the benefit of ‘less and less’? Difficult to say, as such narrative may not win elections, and one can expect lack of consistency-integrity in the global carbon regime. Institutions, even if they declare coherence-integrity and eco-centric values and policies, do not necessarily act in a consistent way and this could be disastrous for the planet. Many societies in the past collapsed and disappeared by destroying their habitats4 and the hope is that we will learn the lessons of the past. The third contribution of this chapter is that ‘soft law’ may be as important as the ‘hard law’ in the global carbon regime. Act with integrity means doing good things when nobody is watching, it is a smart inherent and consistent behaviour in itself. Detached from greed and lust, integrity implies a legitimate behaviour that does not need to be enforced with legal sanctions. In other words, the hard law may play only a contextual legal and organizational role to the integrity systems. Ethical Evolution Ethical values and principles originated in the first human communities and developed from century to century, from place to place. Despite spatial and temporal differences, values, such as liberty, fairness, equality, dignity, integrity and so on have not changed much. They evolved, solidified, were gradually recognized and applied through the establishment of institutions. With the globalization and the ‘death of distance’, two fundamental realizations occur: 1. The Earth itself is a single system, within which the biosphere is an active essential component, a player not a spectator. 2. Human activities are pervasive and profound in their consequences and affect the Earth at a global scale in a complex and accelerating way. The ethics in the Anthropocene evolves and reshapes old principles. Take the example of the precautionary principle ‘do not harm’, which used to have anthropocentric meaning – do not harm people – but now it needs to be understood as applicable to the natural world, biodiversity, all living species. Another transformation from anthropocentrism to eco-centrism can be the Golden Rule, ‘I will treat others as I would like others to treat me’ – in the Anthropocene this becomes ‘I will treat Nature as I would like Nature to treat me’. Another example of change, the classical concept of justice has been always based on a distinction of victims and perpetrators, aimed at remedying the victims and punishing the perpetrators. In the Anthropocene the same people can emerge both as perpetrators and as victims of climate change. Or to take the ethics of ‘polluter pays’, in the Anthropocene it is complemented by the ethics of ‘beneficiary pays’, ‘capable pays’, 2 Jared Diamond, Collapse: How Societies Choose to Fail or Survive? (New York Penguin, 2011): 503. 3 Charles Sampford, ‘Reconceiving the Good Life: The Key to Sustainable Globalisation’, Australian Journal of Social Issues 45, no. 1 (2010): 13–24. 4 Easter Island, Pitcairn and Henderson islands, Anasazi, Maya, Vikings, Norse Greenland and so on. See, Diamond, Collapse: How Societies Choose to Fail or Survive?

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‘responsible pays’ and so on. Such an evolving ethical variety makes the solutions more complex, as experienced in the negotiations on the funding of the global carbon regime, where a deep gap still exists between the north and the south. If the classical international relations theory has been based on state actors making decisions and behaving responsibly or irresponsibly, in the Anthropocene the civil society and individual behaviour become similarly significant. The human security, a people-centred approach introduced two decades ago to distance our thinking from the state security, needs to be reformulated again to include ecological and planetary security. Even human rights, being historically state-centred and carrying ego-expectations, have been seen for a long time as what states owe us, what states should deliver. But we cannot lie on the sofa and expect states to give us human rights, we need to develop ‘human capabilities’5 and such a capabilities approach would be a way of conceiving and implementing human rights.6 The next generations will face more dangers caused by human-made climate change, not so much by wars, tyranny of dictators or expansion of Empires. The right to a clean environment becomes essential, but this right should not be seen as yet another ego-centric right – we, humans, would like to live and prosper in a green clean landscape – whales and dolphins also need a clean environment and oceans should not be polluted with human-made plastic bags. Anthropocene Epoch The difference of the Anthropocene is that for first time in their entire history humans have the capacity to alter the Earth system in ways that threaten its very processes and components. During the Holocene (the last 10,000 years), the weather conditions on Earth were relatively stable and beneficial for agricultural and industrial activities, and led to technological progress and an increase in world population. If, in the Holocene, humans relied on nature to survive, in the Anthropocene nature relies on humans to survive. If, in the Holocene, humans acted with anthropocentric ethics, in the Anthropocene humans act with eco-centric ethics. The term ‘Anthropocene’ was proposed in 2000 by the ecologist Eugene Stoermer and the Nobel Laureate chemist Paul Crutzen7 who studied the influence of human behaviour on the atmosphere, finding it significant and deserving a new geological epoch. In the last 150 years humankind has exhausted 40 per cent of the oil reserve that took one hundred million years to generate, and 50 per cent of the land surface was transformed by direct human action, with significant consequences for biodiversity, nutrient cycling, soil structure and biology. More nitrogen is now synthetically produced for fertilizers and through fossil fuel combustion than has naturally occurred in all terrestrial ecosystems throughout time. More than half of all accessible freshwater is used for human purposes. The planet is severely dominated by complex and interacting human activities, exponential in rate and significant in magnitude. These activities affect every Earth component – land, oceans, coastlines and the atmosphere. The latest research recognizes nine quantifiable planetary boundaries that should not be transgressed to avoid unacceptable environmental change and these boundaries are: 5 Martha Nussbaum, ‘Capabilities and Human Rights’, Fordham Law Review 66, no. 2 (1997): 273–307. 6 Amartya Sen, ‘Elements of a Theory of Human Rights’, Philosophy and Public Affairs 32 (2004). See also, Amartya K. Sen, ‘Equality of What?’, in The Tanner Lectures on Human Value, ed. Sterling M. McMurrin (Salt Lake City: University of Utah Press, 1980): 195. 7 Paul Crutzen and Eugene F. Stoermer, ‘Have We Entered the “Anthropocene?”’, Global Change 41 (2000).

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1. climate change – CO2 and other GHG emissions leading to increasing global temperature; 2. ocean acidification – bleaching of coral reefs and negative impacts on reef ecology, relevant to sustainability of life on low-lying coral atolls; 3. stratospheric ozone O3 depletion and increased incidence of cancers; 4. biogeochemical nitrogen cycle and phosphorus cycles – a counter-balance to decreased crop yields leading to dependency of the world’s poor on international agrochemicals; 5. freshwater use – by 2030 more than half the world’s population may face water shortages; 6. land system change, land-use and land-cover change – the current rate, extent and intensity of these is far greater than at any time in recorded history, driving unprecedented changes in ecosystems and environmental processes; 7. loss of bio-diversity and negative impacts on natural ecosystem processes and services; 8. chemical pollution – increased levels of atmospheric, terrestrial and water chemical pollution; and 9. atmospheric aerosol loading – increased atmospheric loading and deposition of the mineral dust aerosols have negative human health implications.8 Such spatial scale of negative change is unknown in the human history and perhaps in the entire history of the Earth. Until the industrial revolution, humans and their activities played an insignificant role in the dynamics of the ecosystems, but since then they have matched and exceeded nature in terms of changing the biosphere and affecting all parts of terrestrial functioning. The pace and speed of change are in an unprecedented order of decades to centuries, not of centuries to millennia of comparable change as in the previous natural dynamics of Earth system. In 2008 a formal proposal to add the Anthropocene as a formal epoch into the Geological Time Scale was presented to the Stratigraphy Commission of the Geological Society. Many geologists already use the term9 and advocate for it to be officially accepted. The scale of climate change has become so large that the human security, or rather insecurity, has to be understood as an ecological process. If in the past the major threats to human life were wars, epidemics, hunger and domestic crimes, in the future more dangers stem from a range of overlapping multidimensional negative effects of climate change. Humanity has managed progressively well in preventing and responding to conflicts and diseases, but not yet as well to climate change-related disasters. Recent analysis from the United Nation Office for Disaster Risk Reduction (UNISDR) states that, for the first time in history, the world has experienced three consecutive years surpassing the $100 billion threshold for economic losses from disasters. On average, the lives of over 200 million people are disrupted by disasters each year.10 The human egothinking, empowered by technological revolution and a greed-driven economy, led to excessive consumerism, increasing CO2 emissions and global warming. With the larger part of the humanity moving beyond the risk of poverty or resource scarcity, eco-centric values should prevail over egocentric values. As Sampford, Chapter 12 in this book, suggests, we don’t want asceticism to replace the ‘good life’, but driving a fuel sports car along Fifth Avenue in Manhattan, wearing fur coats, eating beefsteaks and smoking cigars cannot be an attractive and aspirational lifestyle. Rich people of the Anthropocene may well drive bicycles, wear cotton and eat vegetarian. We cannot continue to endlessly extract resources to exhaustion, emit carbon dioxide and kill rare species. 8 Vesselin Popovski and Kieran Mundy, ‘Defining Climate Change Victims’, Sustainability Science Journal, no. 7 (2012): 5–15. 9 The American Geological Society, ‘Annual Meeting: Archean to Anthropocene: The Past Is the Key to the Future’, http://www.geosociety.org/meetings/2011/ (accessed 11 May 2015). 10 ‘Call to Save Lives and Protect Investments from War and Disasters’, http://www.unisdr.org/ archive/31670 (accessed 30 March 2015).

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Eco v. Ego? Anthropocentrism has been the ethical value system of the past centuries. In the Anthropocene epoch the ego-centric ethic gradually evolves, adding biocentrism and eco-centrism. Biocentrism implies that humans and all species are members of the same biodiversity, they are integral elements in a bio-system, where humans and all organisms are interdependent centres of life and each pursues its own good. Eco-centrism is an expansion of biocentrism by including abiotic components of the environment. It is less concerned with individual forms of life and rather focuses on interactions and systemic dynamics. Holistic ecological moralists, like Aldo Leopold, made a call for ‘land ethic’,11 and it was met with criticism by some who questioned the moral equation of humans to animals, calling it eco-fascism.12 In defence of eco-ethics, one may argue that it does not remove and replace the anthropocentric ethic, it builds up on top of it. No need to worry that eventually a culling of over-populous species may open a moral door for the culling of over-populous Homo sapiens if ever necessary to maintain the balance of biotic community. Leopold regarded the land ethic as an additional volume of ethical obligations; which does not substitute, nor replace, previously evolved obligations, among them the duty to respect human life, liberty, the pursuit of happiness and so on.13 Environmental ethics are hierarchical, not holistic, and can provide second-order principles to prioritize duties to fellow humans above those to the biotic community if they conflict.14 Historically, humans considered the planet as eternal and safe and were worried about their own survival, not so much about the survival of the planet. Such ego-centrism was normal, based on human superiority over nature, and it regarded the non-human environment as an arsenal of resources to be exploited for maximum human gains. Ego-centric ethics were not necessarily problematic during the time where the planet’s resources were sufficient for the size of the world population. People could deal with ecological challenges, but these were mild challenges, compared to the ones predicted if the temperature rises above 2°C. The common theme between anthropocentrism and eco-centrism as ethical systems is human stewardship, however they are sharply different for whom they do it. Anthropocentrism focuses on humans and ecosystems have only instrumental, not intrinsic value. For eco-centrism – or nonanthropocentrism – the entire ecosystem is intrinsically important and humans are just one part of that system. There can be two approaches to non-anthropocentrism: 1. Evaluative – that natural (non-human) objects have intrinsic value in their own right independent of any use they may have for others. 2. Psycho-behavioural – that people who believe in the evaluative approach are more likely to be environment-friendly, or at least act in less-harmful ways.

11 Aldo Leopold, ‘The Land Ethic’, in A Sand County Almanac (Oxford: Oxford University Press, 1981). A very recent critique is Noreen M. Breakey and Hugh E. Breakey, ‘Tourism and Aldo Leopold’s “Cultural Harvest”: Creating Virtuous Tourists as Agents of Sustainability’, Journal of Sustainable Tourism 23, no. 1 (2015): 85–103. 12 Tom Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983). 13 J. Baird Callicott, ‘Holistic Environmental Ethics and the Problem of Ecofascism’, in Beyond the Land Ethic: More Essays in Environmental Philosophy, ed. J. Baird Callicott (Albany, NY: State University of New York Press, 1999): 59–76. 14 Kristin Shrader-Frechette, ‘Individualism, Holism, and Environmental Ethics’, Ethics and the Environment 1, no. 1 (1996): 55–69.

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Much of the attention on environmental ethics15 has been paid to clarifying the evaluative approach, which achieved almost a canonical status. By contrast, the psycho-behavioural approach has been seldom discussed, though it should be part of the tacit background of environmental ethics. The psycho-behavioural approach is important as it provides a tool to diagnose and solve environmental problems, and gives practical justification to the discipline of environmental ethics itself, conceived as a mission to convert us to non-anthropocentrism. Central to the psycho-behavioural approach is a problematic thesis: if people believe they have a duty to respect nature or believe that natural things are intrinsically valuable, then they will act in more environment-friendly ways. This empirical claim cannot be answered by purely philosophical reasoning. Other core premises of major philosophical theories on the origin of environmental crisis are also empirical claims about social and cultural reality, and to be credible they must stand up to empirical testing. For example, are people who think in dualistic and hierarchical ways (as described by feminists) more likely to have anthropocentric attitudes and more likely to act in a harmful way? Are people who believe in animism (as panpsychists argue) less likely to have anthropocentric attitudes and less likely to harm the environment? What about people who adopt relational or holistic views, as advocated by deep ecologists? How do they act towards nature compared to those who adopt more individualistic views? What else should we do to spread the eco-ethic? Must we just wait around for the culture to shift itself to the new reality? If not, then what?16 Of the major theories on the origin of environmental crisis, Lynn White’s17 is the only one that has been empirically tested, and even then the outcome has been inconclusive, especially when education, sex, age and social class are factored.18 Environmental sociologists often take the psycho-behavioural non-anthropocentrism for granted. Some of the widely used surveys, like the ‘New Environmental Paradigm’ scale to measure pro-environmental attitudes,19 are problematic because they explicitly use indicators of beliefs in anthropocentrism to measure the presence of non-environmental attitudes, thus assuming in advance that anthropocentric beliefs are environmentally harmful. Whether this is so should be settled by empirical investigation, not by an act of a priori stipulation. Despite that there is a striking common underlying structure between White’s and other theories, no sociological study so far has tested the underlying psycho-behavioural non-anthropocentrism and its effects. Social science tools and methods can justifiably be adapted for use in research on environmental philosophy, giving the subject an empirical or even experimental test. Such work may stimulate new ideas about the origins of environmental pathologies, for testing the extent to which belief systems and world-views drive attitudes and behaviours. As long as empirical facts are relevant to philosophical and ethical thought, adoption of social science methods will keep the theorizing in touch with the motivations and behaviours. 15 Callicott, ‘Holistic Environmental Ethics and the Problem of Ecofascism’. 16 Breakey and Breakey, ‘Tourism and Aldo Leopold’s “Cultural Harvest”: Creating Virtuous Tourists as Agents of Sustainability’. They give an excellent answer to these questions, proposing virtuous tourists as agents of sustainability. 17 Lynn White, ‘The Historical Roots of Our Ecological Crisis’, Science 155 (1967): 1203–1207. 18 Heather Boyd, ‘Christianity and the Environment in the American Public’, Journal for the Scientific Study of Religion 38 (1999); Douglas Lee Eckberg and T. Jean Blocker, ‘Christianity, Environmentalism, and the Theoretical Problem of Fundamentalism’, ibid. 35, no. 4 (1996); Andrew M. Greeley, ‘Religion and Attitudes toward the Environment’, ibid. 32 (1993); Ronald G. Shaiko, ‘Religion, Politics, and Environmental Concern: A Powerful Mix of Passions’, Social Science Quarterly 68 (1987); Eric Woodrum and Thomas Hoban, ‘Theology and Religiosity Effects on Environmentalism’, Review of Religious Research 35 (1994). 19 Riley E. Dunlap and Kent D. van Liere, ‘The New Environmental Paradigm: A Proposed Measuring Instrument and Preliminary Results’, Journal of Environmental Education 9 (1978).

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Sustainability Ethics The Anthropocene epoch requires sustainability ethics – a new field of ethics that guides humans to act in a way that respects both the rights of the next generations and the rights of nature. Sustainability means thinking about our children when we make decisions today; it demands inter-generational equity. Adding sustainability to development resolves inherent controversies and liberates the classical development theories from the burden of macro-economic postulates. Concepts, such as development, security and justice, have been very anthropocentric and disconnected from the needs of the planet. ‘Human security’, ‘human development’, ‘equality and justice for all’, ‘nobody left behind’ and eradication of extreme poverty in the post-2015 development agenda are all very nice and aspirational, but what is missing is the second part of sustainability ethics – the ethical relationship between humans and nature. Sustainability ethics establishes our specific responsibilities and guides us to respect the rights of the nature. Sustainability ethics is a normative concept, used as a guiding principle for individual, corporate and governmental actions. It includes, firstly, the personal integrity of individuals, who adopt coherent sets of values and apply them consistently in personal, professional and civic life. Personal integrity is about humans living sustainable lifestyles, limiting the usage of resources (electricity, fuel, water) and reconnecting to the natural world. Secondly, sustainability ethics demands corporate integrity, defined in business ethics and determined in social and environmental responsibilities. It operates by sets of principles (Valdez, Hannover, Copernicus, Natural Step), transits from an extractive economy to an organic economy; increases energy efficiency; designs zero energy buildings;20 cares about nature and biodiversity, and so on. Thirdly, sustainability ethics implies transparent institutions, governments and parliaments with coherence-integrity structures and qualities, acting consistently and introducing and implementing rules and policies which, in addition to serving human interests, aim to protect the natural world. Sustainability ethics is a fair treatment and meaningful involvement of all in the development, implementation and enforcement of environmental policies. Fair treatment means that no ethnic or socio-economic group of people should bear a disproportionate share of negative environmental consequences resulting from industrial, municipal or commercial operations, or the execution of federal, state, local or tribal programmes and policies. Governments, corporations and people create multi-stakeholder sustainability integrity systems applicable to human interaction with non-human life forms and ecosystems. The three groups of stakeholders are involved together in slowing down climate change by reducing greenhouse gas (GHG) emissions, by research and development of renewable energy sources; and by adapting to the unavoidable negative effects of climate change through resilience building. Consumerism v. Climate Anthropocentric ethics encounters two major problems: over-population and over-consumerism. The first question is ‘why do we need more children?’ There is a cultural and an economic explanation – traditions, patriarchal male-dominated societies, religious opposition to contraception and lack of education and discrimination of women produced larger families. Over-population also resulted from economic factors – the need for more hands to do housework. Poverty, disease and 20 Paul Torcellini, Shanti Pless, and Michael Deru, ‘Zero Energy Buildings: A Critical Look at the Definition’, in ACEEE Summer Study (Pacific Grove, California: National Renewable Energy Laboratory, 2006).

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high infant mortality stimulated having more children to ensure the continuity of the family tree and to provide security for parents in their old age. The second anthropocentric pre-occupation – why do we need more possessions? – is more complex. Do humans need more material possessions to substitute for missing non-material, spiritual values? Looking at the huge stalls in enormous food supermarkets one can question why we need to produce hundreds of types of sausages, cheeses, breads, cakes, cigarettes and liquors? In Japan, about 40 per cent of the food in the supermarkets is disposed unsold after the expiry date. Why do humans waste so much energy, water, labour, storage and transportation to supply the food market with so much? One billion people living on the same planet are still hungry and malnourished, where another billion people, living in the rich countries, waste 40 per cent of the food supplied. There must be something fundamentally wrong with the world economy, producing such extreme distributive dis-balance. Economists have attempted to offer a new explanation of the modern capitalism,21 or to announce its death,22 but both failed to offer a profound investigation into how the economy affects the climate. It is very disturbing that the ecological realities today are worse than at the time of the Rio Conference in 1992: temperatures continue to rise, natural resources continue to be over-exploited and fossil fuels remain a central commodity everywhere. The global climate regime attempted but could not shape ethical behaviour around over-population and over-consumption. The technological revolution, rising competition and individualism gradually disconnect humans from the natural world and, combined with the supply-demand chains of capitalism, this adds to over-consumerism. Madeline Levine explains the change in the American culture of affluence as ‘a shift away from values of community, spirituality, and integrity, and toward competition, materialism and disconnection’.23 Integrity, in her opinion, connects people with nature, whereas capitalism and competition disconnect them. The answer to the challenges of over-population and over-consumption are not in the adoption of new laws or regulations. Forced sterilization and other methods of birth control have not produced much. Taxation or loss of subsidies had some moderate success and economic growth resulted in smaller-size families, but reducing consumption through legal barriers did not work. Businesses have been addicted to making profit at any price, no matter how costly this is for the environment. Even today many initiatives towards sustainability are overwhelmingly undermined by economists, speaking the same nice language of liberalization, privatization, homogenization, marketization and globalization, but unprepared to adopt eco-centrism as a paramount ethical system, demanding we live responsibly and in closer harmony with nature, being more aware of its kinship and interdependence to nature. It is worth distinguishing between ‘productivist capitalism’ – more consonant with sustainability ethics – defined by an ethos conducive to work, investment, integrity and deferred gratification; and ‘consumerist capitalism’, a result of an ethos conducive to laziness, obesity, narcissism and dumbness. Benjamin Barber wrote: Consumer capitalism does not operate by fielding self-conscious advocates of duplicity. Rather, it generates thinking on the model of the narcissistic child, infantilizing consumers to the point where 21 See, Thomas Picketty, Capitalism of the 21st Century, trans. Arthur Goldhammer (Cambridge, MA: Belknap Press, 1971; repr., 2013). 22 See, Chris Harman, Zombie Capitalism: Global Crisis and the Relevance of Marx (Chicago: Haymarket Books, 2010). 23 Madeline Levine, ‘Challenging the Culture of Affluence’, Independent School 67, no. 1 (2007): 28–36.

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puerility is not simply an option; it is a mandate. If the attitudes and behaviours that result turn out to undermine cultural values extraneous to capitalism’s concerns – however deeply relevant they may be to moral and spiritual frameworks and to the shape of an ideal public culture – that is too bad. This ethos does not disdain civilization; it is merely indifferent to it. Consumer capitalism encourages individuals to indulge in behavior – however corrupting to civilization – that is useful to consumerism.24

The problem with capitalism is that everyone cannot be rich and possess more and more in a limited planet. The narrative of growth, profits, added value, acquisitions and new markets has been useful in the Holocene, but not in the Anthropocene. Capitalism prevailed over feudalism and previous economic regimes because it offered more and more in a time of expansion. However, in a time of climate change the demand is opposite – lower population, low-carbon, low-water crops, less resource consumption, less coal mining and so on. Climate change reformulates the economic discourse but many traditional industries resist the switch from expanding to saving. Naomi Klein explains this resistance with the rational fear from radical change in rethinking fundamental postulates.25 Naturally, humans worry that the climate crisis in its full reality will change everything. A decade ago using more efficient light-bulbs or driving hybrid cars could have been seen as a part of the solution, however that time has passed. The only way to mitigate climate change is to radically change entire lifestyles, and these changes affect deeply rooted economic and social perceptions. The problem is not carbon, Klein argues, it is capitalism, founded on the use of fossil fuels and remaining the main reason for increasing emissions.26 Switching economic values away from materialistic ideals has more benefits, she writes, than just the mitigation of climate change. A mass movement against capitalism would be able to revive local economies, liberate democracies from the corporate influence and the lack of affordable housing and to subsequently ‘weave all these seemingly disparate issues into a coherent narrative about how to protect humanity from the ravages of both a savagely unjust economic system and a destabilized climate system’.27 Mitigating climate change does not fit well with the capitalist materialistic lust, credit cards, overspending and over-consumption. Capitalism is problematic not only in terms of mitigating climate change but also in terms of adaptation to climate change. All data shows that the poorest people will be the most vulnerable to the increasing extreme weather events and other consequences of climate change, but the market does very little to protect the poorest28 and the role of the state in the Anthropocene becomes essential. There is a high entrepreneurial need for states to invest first in long-term sustainability projects, bear the primary initiative in fostering the green economy, socializing the risks and privatizing the rewards.29 Similarly to the capitalists, the neo-liberals needed the discourse ‘more and more’. Politicians cannot win elections promising ‘less and less’ and green parties did not score well in elections. 24 Benjamin Barber, ‘Shrunken Sovereign: Consumerism, Globalization, and American Emptiness’, World Affairs 70, no. 4 (2008). 25 Naomi Klein, This Changes Everything: Capitalism Vs. The Climate (New York: Simon and Schuster, 2014). 26 Ibid. 27 Ibid. 28 Paul Collier, The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done About It (New York: Oxford University Press, 2007). 29 Mariana Mazzucato, The Entrepreneurial State: Debunking Public Vs. Private Sector Myths (London: Anthem Press, 2013).

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If Naomi Klein and others questioned the capitalist ethos and urged reassessing its values, Francis Fukuyama reconsidered his over-optimistic views on neo-liberalism30 in a book following a counterintuitive insight, deeply pertinent to current democratic discontents – if strong central authority is needed for the politics to work, people who want to shrink the state need to be careful not to shrink its capacity to govern at the same time.31 Here comes an interesting paradox: to achieve a less controlling state one needs a strong state control. A widespread attempt to achieve smaller and more efficient government has only succeeded in making it more bureaucratic and corrupted. The only power to control a state is a more powerful state. Fukuyama admits that we are not at the ‘end of history’ in a paradise of liberal values. An antagonism deepens between democracy as a positive value and democracy as a negative value. True political order comes when the positive and negative sides of democracy cohere, when people who control the power of governments also respect these governments. That is not the case at present: where democracy replaced dictatorships – in Ukraine or Egypt – constraint has been anarchical and counter-productive. Where constraint is fully functional – in the USA – respect is in short supply and the politics of resentment and complaint is manifested with deep partisan intolerance. Ironically, institutions that poll best with the American people – armed forces, NASA – are the ones with the least democratic oversight; and in contrast, institutions that Americans hate – such as Congress – are the most democratic.32 The globalized world is more difficult to govern and the taxonomy of failure consists of three missed chances: the failure to predict, the failure to see and the failure to react. To a certain extent the agreements on climate change suffer from failures in all three. The blame for the first failure could be partially borne the scientists, but the failures to perceive the huge challenge of climate change and the failure to react rapidly have been entirely governmental and corporate failures. Geography is not destiny and history is not fate: 100 years ago, the Chinese people, desperate for jobs, went to seek work in the Philippines, today Filipinos, desperate for jobs, go to Hong Kong, Taiwan and Shanghai. Thirty years ago Zimbabwe was the paradise of Africa, now it is the shame of Africa. Political order and good governance do matter, but they take time to develop. The British and French took centuries to put their institutions in order, but in the Anthropocene the rising ecological risks demand speed. States lacking capacity to deal with these risks will more often face angry demonstrators and political decay can deepen the crisis of capitalism. Give Soft Law a Chance At the COP, 21 countries will make bottom-up pledges to reduce carbon emissions. These pledges are not legally binding obligations but this should not necessarily be seen as a carbon regime failure. Various international treaties were binding – like the 1997 Kyoto Protocol – but achieved very little. The non-proliferation regime and other disarmament treaties did not make much of a difference but some states voluntarily disarmed – they do so simply by recalculating their national security concerns and finding out that the more weapons they possess, the more dangerous it is for their neighbours and the less secure they might end up being. The problem with climate change, in comparison with the arms race, is that excessive CO2 emissions threaten not only the neighbours but the whole planet. 30 Francis Fukuyama, The End of History and the Last Man (London: Penguin, 1993). 31 Francis Fukuyama, Political Order and Political Decay: From the Industrial Revolution to the Globalisation of Democracy (London: Profile Books, 2013). 32 Ibid.

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The law falls in the context-integrity of the integrity triad and, as Chapter 2 in this book guides us, the institution’s legal context is made up of the over-arching (domestic and international) laws and regulations governing the institution in its processes and activities. In Legality and Legitimacy in Global Affairs, I argued that the legitimacy of international regimes: apart from being legal, could also be ethical, religious, rational, or even subconscious … Legitimacy can strengthen legality and add authoritative power to norms that exist in treaties and customs. But legitimacy can also challenge legality … when laws are paralyzing, obsolete, or discriminatory, legitimacy can be the corrective force, invoked to address claims for global justice, human dignity, emergency protection, or environmental security.33

Legitimacy and sovereignty connect environmental conventions and ethical principles on the one hand, and with global environmental governance on the other. Hard law – a cosmopolitan harm convention – is problematic because of state sovereignty, property and authority rights therefore, in parallel with attempts to adopt hard law, it might be good to also appropriate soft law, delegating the treatment of environmental injustices within the inter-subjective context of relevant political communities. Soft law can frame global environmental governance not in regulatory terms, rather in ethical terms, and it offers implicit value judgments about appropriate practices, justice, nature of rights and duties, and to whom these are owed. There are tensions between representation and effectiveness in existing institutions and the prospects for building more inclusive, transparent and accountable institutional arrangements, principles and norms for responding to environmental injustices and ensuring intergenerational equity where cosmopolitan harm conventions are concerned. The entrenchment of the neo-liberal economic order and the limited prospects for transforming it necessitates a higher activist role of academics and experts, whose intellectual and moral duty is to speak truth to power – not only through education but also through political action. It would be interesting to project whether a principle similar to Responsibility to Protect (R2P) can be applied to climate change and environmental challenges, bearing in mind that the R2P became globally accepted exactly when it shifted the focus from states’ interests to intervene to the peoples’ interests to survive. The talks on the global carbon regime are still very much about states’ interests or states’ rights. Crucially, peoples and societies who are most affected by transnational environmental injustice are those who are most often excluded from the list of stakeholders or rights-holders. There would be a double jeopardy if states and societies underestimated the climate agenda: first, such negligence will not make the climate challenges disappear, it would intensify the negative impacts and make more costly the late efforts towards mitigation and adaptation. Second, ignoring ecological priority de facto eliminates a crucial unifier from the agenda, and is likely to strengthen and rigidify the old geopolitics, boost intolerance and as a result make it more difficult to negotiate future cooperative arrangements. Human history demonstrates that when facing uncertainties and dangers societies do not necessarily cooperate to find solutions, they can opt for competition, confrontation and violence, which would, ironically, deepen the very same dangers that the societies aim to address. The Anthropocene needs the opposite – when facing dangers, humans need to unify, not to compete. This is where a revision of capitalism, a system based primarily on competition, becomes essential. 33 Vesselin Popovski, Legality and Legitimacy in Global Affairs (Oxford: Oxford University Press, 2012): 389–91.

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Perpetrators become Victims Humans have been victims of other humans in the long history of wars and crimes. Humans have been victims of nature and have suffered earthquakes, tsunami and other hazards. Nature suffered as a result of humans who excessively extracted its resources. In the Anthropocene the cause–effect becomes rounded – humans suffer from climate change, or from the suffering of the nature inflicted by humans. Climate change affects ethical identifications; victims and perpetrators become blurred categories. In the history of human suffering there used to be a clear victim–perpetrator association – the murderer is the perpetrator and the murdered is the victim. Aggression and war, acts of slavery, colonialism, foreign occupation and so on had clear perpetrators and clear victims. Natural disasters produce clear victimhood, but no perpetrators (or abstract perpetrators like God, or Mother-Nature). In climate change everybody – governments, private sector, individual people with over-consumptive lifestyles – are perpetrators, but also everybody is a potential victim. This is a different paradigm of justice from the one where perpetrators are punished and victims are remedied. Table 11.1 below illustrates various types of disasters and responsibilities – both direct and indirect – for causing the disasters and for failure to prevent and respond to them. Table 11.1 Disasters Type of disaster Political/military: armed conflict, civil war, atrocities, terrorism Economic disasters Environmental disasters

Direct responsibility Indirect responsibility Governments Rebel forces Private sector (weapons industry) Governments Private sector

Biological: diseases, epidemics

‘Mother-Nature’

Natural disasters: earthquakes, tsunami ‘Mother-Nature’ Climate change disasters

Everybody

Private sector Governments regulate, mitigate, punish polluters Governments and private sector fund research, mitigate, cure Governments and private sector build resilience, mitigate

Types of disasters can be inter-connected. Diseases and epidemics can spread as a consequence of armed conflicts or earthquakes. A natural disaster can be a catalyst for conflict resolution (Aceh, 2005). After a massive disaster people can cooperate to survive (North East Japan, 2011) but can also unleash violence (Hurricane Katrina 2005). Climate change can intensify otherwise natural disasters, adding a human-induced element. Accordingly, such natural disasters become less ‘natural’, expanding the responsibility of the human beings. People, being both perpetrators and victims of climate change, are challenged by the choice to live together as a species in an environmental ‘death camp’, a by-product of interdependence, acute inequality and deformed social structure, or living together according to the ethics of global good citizenship, based on equity and sustainability.

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Personal and Institutional Integrity in the Anthropocene In the Anthropocene, the normative and regulative dimensions of the responses should be decisive, not just a covert plea for enhanced integrity or renewed confidence in the technological ingenuity, innovation or geo-engineering approach to sustainability. The global carbon integrity systems need to be sensitive to the difficult questions of the Anthropocene. Personal integrity has to be expanded beyond the human domain to encompass the substitution of a collaborative relationship with animals and plants that supersedes modernist patterns of separation and domination, while at the same time to re-establish some distance between the realm of machines and that of soulful human beings. The struggle for a just world order is no longer primarily a matter of institutional arrangements, global governance or developmental strategy as it seemed to be until the start of the present century, it requires personal and institutional integrity to sustain the basic equilibria of the earth. The nature of what it means to be human is in the process of being reassessed from many perspectives. In this sense the Anthropocene is not just a negative reality that creates uniquely troubling concerns about the heavy human footprint and its bearing on the survival prospects of the human species, but it is also expressive of a reflexive positive reality that offers a restorative potential, an exciting set of neo-Promethean capabilities waiting to be activated and acted upon. George Monbiot in his book Heat offered suggestions on how, through personal integrity, people can transform their lifestyles, houses and transport, but cautioned that this can happen only with massive governmental input and institutional integrity.34 Regretfully no government has yet been prepared to take such action, mostly because of the cowardice of politicians and their links with corporations trying to survive on fossil fuels. Monbiot sweeps away the perpetual excuse that it would be too painful and expensive to move towards renewable energy and supports his proposals with a rigorous investigation into what works, what does not, how much it costs and what the problems might be. To save the planet, not only do people and societies need to adopt eco-centrism but so do governments and corporations. The stakes are much higher than in any previous crises. Climate change can no longer be a secondary issue or an afterthought; it tops the agenda and needs a full-scale effort from everyone. It needs the force of the personal integrity of humans switching to sustainable lifestyles and it also needs enormous integrity commitments from both public and private institutions. It needs positive obligations and actions – the negative ethic of ‘don’t pollute’ will simply not be enough. The hope is that inter-generational justice may more strongly work on a personal level because of family bonds – individuals think in a less abstract way when their own children and grand-children may suffer because of anti-environmental actions. In the Anthropocene, personal integrity has become inseparable from institutional integrity.

34 George Monbiot, Heat: How to Stop the Planet Burning (London: Penguin, 2006).

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Chapter 12

Still in Search of the Good Life Charles Sampford

Introduction At the 2014 G20 held in Brisbane, Australia took the position that climate change is not an economic issue. Most others thought it was – especially the Turkish Prime Minister who is hosting the 2015 G20. It certainly is an economic issue. But, it is not just an economic issue – either in the source or the solution. Resource-intensive, high-carbon, western lifestyles are frequently criticized as unsustainable and deeply unsatisfying. However, these lifestyles are still attractive to the majority of westerners and to a high proportion of the developing world’s middle classes. This chapter argues that the imminent threat of catastrophic climate change constitutes an immediate political, economic and ethical challenge for citizens of the developed world that cannot be tackled by appeals to asceticism, restraint or even a high price on carbon by itself. There can be no solution to climate change until sustainable conceptions of the good life are developed that those in the west want to live and which others might want to live. While the ultimate solution to climate change is the development of low-carbon lifestyles, it is important that government initiatives, governance arrangements and economic incentives support rather than undermine that search. Like the global financial crisis, the ‘global carbon crisis’ demonstrates what happens when weaknesses in national, corporate and professional governance are exacerbated by weaknesses in global governance. In tackling the latter, it is critical the mistakes now evidenced in the former are avoided – including a rethinking of carbon market and carbon tax alternatives. It is also critical that individuals must take responsibility for their actions as consumers, voters and investors. It is 15 years since I was first invited to think about the ethical and governance problems surrounding the issues of global warming – giving the opening keynote to a World Council of Churches Consultation on the Global Atmospheric Commons.1 The commonly perceived ethical issue at the time was that carbon trading would allow developed countries to avoid their responsibility for fixing the problem they had caused. My views on carbon trading were informed by recognizing: • the value of well-governed markets and the effectiveness of clear price signals. Putting a price on carbon could have dramatic effects on the decisions of consumers, investors and providers of goods and services. However, through direct experience of currency markets during the 1980s, I recognized that market players could profit from generating volatility in which they profited at the expense of those investing in the provision of goods and services;2 1 Charles Sampford, ‘Ethical Standard Setting for Global Incentives: Towards an Effective Regulatory Philosophy of Global Greenhouse Response: Opening Plenary’, World Council of Churches Consultation on the Global Atmospheric Commons (Saskatoon May 2000). 2 In promoting volatility, traders benefited at the expense of those who needed to exchange currencies to conduct business through a combination of asymmetric knowledge and outright manipulation – the extent of which was only revealed in 2013. Although some currency risks can be hedged (generating major profits

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• that markets involve the trading of property rights and the ‘initial distribution’ of those property rights was irrelevant in some theories of market operation but vitally important as a matter of ethics and justice (especially issues of distributive justice); • economic incentives are an important governance tool but, like all governance tools, they are most effective as part of a package of ethical standard setting, legal regulation and institutional reform and such packages are necessary for major reforms to succeed.3 The primary ethical question is not about how the economic incentives are activated but the overall values major reforms seek to secure. The conclusions I drew were that: • The fundamental problem was that an unsustainable ‘high-carbon’ version of the ‘good life’ had been developed in the west and was increasingly sought by the rest. • The wealthiest countries were pressing for carbon trading schemes because all such schemes allocated more per capita rights to emit to themselves than to others. This approach effectively created property rights in unsustainable activities (emitting carbon) and allocated most of those to the countries that had already contributed most to the problem. This arrangement was neither fair nor likely to be agreed by the less-developed countries. • The wealthiest countries wanted to buy some of these limited rights from less-developed countries. However, if the latter still sought high-carbon lifestyles the extra resources would be expended on high-carbon activities, adding to global carbon emissions. Although in theory this might work, in practice there would be enormous ‘leakage’ and incentives to cheat. • Accordingly, low-carbon versions of the good life that both the west and the rest wanted to live were essential to solving global warming. This could be assisted by putting a price on carbon (preferably through carbon taxes). • Grandfathered trading schemes encouraged investment in unsustainable activities. • Part of the ‘good life’ involved meaningful and rewarding work and we should look to stimulate low-carbon or no-carbon industries that would provide such work. Carbon taxes would help promote low-carbon industries. It was nearly a decade before I returned to this theme in the same holistic way although I did compare the global financial crisis and the global carbon crisis and proposed a ‘carbon added tax’ (CAT)4 as well as exploring the similarities between the problems of water trading and carbon trading.5 Since then, I have returned to the ethical questions,6 providing more details of how a CAT for the market players), long-term currency risk is effectively uninsurable. By increasing the risk of doing business, this activity was not only another way of securing fees from the business customers’ banks claimed to serve but discouraged what would be otherwise a profitable investment in exporting and importing competing businesses. 3 Charles Sampford, ‘Law, Institutions and the Public Private Divide: Invited Keynote Address at Australasian Law Teachers Association 1990 Conference, Canberra’, Federal Law Review 20 (1991). 4 ‘Global Transparency: Fighting Corruption for a Sustainable Future: From National Integrity Systems to Global Integrity Systems’, 13 IACC (Athens, 2008). 5 ‘Water Rights and Water Governance: A Cautionary Tale and the Case for Interdisciplinary Governance’, in Water Ethics. Marcelino Botín Water Forum 2007, ed. M.R. Llamas, L. Martínez Cortina, and A. Ukherji (Leiden, the Netherlands: CRC Press/Balkema, Taylor & Francis Group, 2008). 6 ‘Reconceiving the Good Life: The Key to Sustainable Globalisation’, Australian Journal of Social Issues 45, no. 1 (2010).

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would work as well as identifying the two issues as the ‘ethical pull and the economic push’.7 I also did some initial work on the need for global carbon integrity systems8 which is now the subject of the Australian Research Council Grant that has supported the work behind this book. This chapter develops these arguments while, like the 2009 paper, it concentrates on the ‘ethical pull’ while rehearsing a few aspects of the ‘economic push’. Globalization and Governance Over the last quarter century, the flow of money, goods, people and ideas across borders has threatened to overwhelm the system of sovereign states. Sovereign states have not been overwhelmed and more of them have become more insistent on sovereign rights (something that, in the late 1990s, the United States seemed to think applied only to them). There was considerable progress on democratization of public power during the 1990s, a trend that has continued in some countries and waned in others. On the other hand, much activity has moved outside the control of nation-states at the same time as nation-states have ‘deregulated’ and ‘privatized’.9 Such policies have transferred power from those exercising governmental power at the nominal behest of the majority of its citizens to those with greater wealth or greater knowledge in markets in which knowledge is typically asymmetric – and in which power is distributed on a very different basis of one dollar one value rather than one vote one value.10 It is now recognized that many governance problems have arisen because of globalization and can only be addressed by global solutions.11 It must also be recognized that governance problems at the national level contribute to governance problems at the global level and vice versa. This is true of current issues from the melting Greenland glaciers to the ethical and financial meltdown of Wall Street and the City of London (which followed up the derivatives debacle with LIBOR and currency scandals). In both areas, there are glaring and mutually reinforcing weaknesses in global governance institutions, national governance institutions and corporations. In the case of the financial crisis, there have been significant failures of professions and those whose advice is trusted. From the ratings agencies, to corporations, to superannuation funds, to banks, to governments and multilateral agencies, institutions must be redesigned to increase the probability that they will use the power entrusted in them to serve the public interest in the way they claim. With climate change, there have been serial and mutually reinforcing failures in global governance (as seen in Copenhagen and the failure so far to develop an effective global response), national governance (with failures to agree on the extent of the problem and the means for addressing it) and corporate governance (from short termism to green-wash). 7 ‘Tax Carbon Not Consumption: Learning from the GFC and Avoiding a GCC (Global Carbon Crisis)’, Public Lecture: QUT (Brisbane, 2011). 8 ‘Reconceiving the Good Life: The Key to Sustainable Globalisation’. 9 Deregulation has generally preceded ‘privatization’ – though the attempted privatization of natural monopolies has required a high degree of regulation which the former movement rubbished as ineffective. 10 I remember one exchange at a Fulbright conference we organized (‘Beyond the Republic’) in 1999. When the then Director of the Australian Government’s Centre for Democratic Institutions lauded the development of democracy across the globe in the same speech as he lauded the spread of the market, I asked: ‘If democracy is so great, why do you insist that it operates over such a diminished area of public life?’ 11 Joseph Stiglitz, ‘The Future of Global Governance’, in The Washington Consensus Reconsidered. Towards a New Global Governance, ed. Narcis Serra and Joseph Stiglitz (Oxford: Oxford University Press, 2008).

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I have argued elsewhere that the many institutions involved will need to ‘ask themselves hard questions about their values, give honest and public answers and live by them’.12 They will need to recognize the values they are furthering and the way that those values and actions provide us with a sustainable future. This is not only true of national and international ‘public’ institutions but also of corporations. Despite the common view among some executives that their only duty is to increase the share price, there are a wide range of arguments for considering other values from virtually any philosophy of business ethics, through the UN Global Compact, ISO 4000; United Nations-supported Principles for Responsible Investment (UNPRI); the Earth Charter; triple bottom line reporting; the Equator Principles; concepts of the licence to operate; corporate social responsibility; socially responsible investment. These are different ways of saying: ‘there is more in heaven and earth than are dreamed in your philosophy’.13 But ethical executives do not have to rely on any sense of self-sacrificing virtue. The industries that will be prospering over the next 20–30 years will be those at the forefront of low-carbon industries. The economic push advocated here will merely make the transition quicker, more effective and more obvious. These institutions will need to address integrity issues – from the clarification of the values they stand for to the ways in which they ensure that their actions reflect those values. They will also need to interact and support each other in the form of national and international ‘integrity systems’ – something that will be the subject of the next workshop under our grant. If we are going to demand that institutions are to serve our interests and values, it is critical that we are clear to ourselves what our values are and how those values are integrated into our view of the good life and that of our actions as citizens, consumers and investors. This approach involves another form of ‘integrity’ to those discussed in Chapter 1 – ensuring that the values we pursue in our different roles are consistent with each other and that our actions taken as citizen, consumer and investor reinforce rather than undermine on each other. Carbon, Climate Change and Unsustainable Versions of the Good Life Unlike the increasing flows of money, goods, people and ideas across national borders that constitute the heart of globalization, carbon flows across borders independently of human action. It is a headline issue because all of the above-mentioned global flows have exacerbated climate change, and because solutions involve global agreement on goals and the creation of untried institutional mechanisms. If global warming is to be halted this century, total emissions have to be capped and cut and all states will have to participate in securing that outcome. The fundamental driver of our climate problems is arguably the incipient spread of an unsustainable western version of the ‘good life’. Resource-intensive, high-carbon, western lifestyles are frequently criticized as unsustainable and deeply unsatisfying, and yet it would appear that their ethical legitimacy has been established by the adoption of a bowdlerized version of utilitarianism that its most famous exponents would have derided. Jeremy Bentham himself believed in a form of utilitarianism that maximized, but which applied to everyone equally, and which included a very important principle – the principle of diminishing marginal utility.14 The first loaf of bread 12 Charles Sampford, ‘Towards a Global Carbon Integrity System’, Low Carbon Economy 2, no. 4 (2011). 13 William Ransome and Charles Sampford, Ethics and Socially Responsible Investment (Aldershot: Ashgate, 2010). 14 Jeremy Bentham, ‘Pannamonial Fragments’, in The Works of Jeremy Bentham, ed. John Bowring (New York: Russell and Russell Inc, 1843; reprint, 1962): 228.

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makes one happy, the second loaf of bread does not add to one’s happiness nearly as much as the first, and the third may be positively unhealthy. Of course, it is hard to measure utility directly, so many decide to measure dollars (which, before derivatives, were easy to count) rather than utility or happiness15 and ignore the equalizing role of diminishing marginal utility. This methodology arguably leads to a ‘dollarized’ (or ‘dolorized’!) version of the good life that is not ‘good’ and may not be much of a life. However, whether by good marketing or bad habits, these lifestyles are still attractive to the majority of westerners and to a high proportion of the developing16 world’s middle classes. In so doing, northern profligacy has become southern aspiration. Even if confined to the west, such lifestyles are unsustainable: their extension to the rest of the world increases the downward spiral to ecological catastrophe. Since the 1970s, there have been many pleas for western nations to desist from unsustainable aspects of their lifestyle and more ascetic lifestyles have been advocated. While some will choose less energy intensive and environmentally damaging versions of the goods and services they desire, self-denial has rarely been widely popular among those who can indulge themselves, and the numbers pursuing unsustainable lifestyles has increased over the last 30 years rather than decreased. In sum, the key problem is that the west has invented and proselytized an unsustainable version of the ‘good life’ that other countries seek to emulate.17 There can be no solution to climate change until sustainable conceptions of the good life are developed that westerners want to live and which others might want to adopt. A dialogue between east and west might be very instructive in imagining such conceptions of the good life. Fortunately, many of the things that human beings value most do not require huge investments of energy and an unsustainable use of resources – for example: companionship, conviviality, conversation. None of Martha Nussbaum’s extensive list of human values – to take one prominent example of the emerging broader and deeper approach to these questions – need break the ecological bank,18 implying that low-carbon lifestyles can be ‘good lives’.19 I would strongly agree as a general principle, but the issue seems to me to be not entirely straightforward. If lowcarbon emissions slows economies, and lowers the available tax base, then state-funded services (for example, for health) might need to be wound back. Equally, in certain cases a person might need to travel by air to visit their family back home, making their social/family life carbonintensive. Will there really be no costs caused by the CAT to genuinely valuable activities and services? Other alternatives based on maintaining the unsustainable western lifestyles (the evaluative status quo), including coercing low-emitting countries to cap their carbon emissions 15 Demand and supply curves may recognize that the rich man does not value the third loaf of bread and does not recognize the fact that the poor value the first loaf even more and certainly much more than the rich man’s next transient treat. 16 I use the term ‘developing’ rather than ‘less developed’, ‘low income’ or ‘very low income’ despite what is sometimes seen as a neo-liberal bias in the term. First, the term predates neo-liberalism. Second, and more importantly, I still maintain the view that we need to develop the economies and polities of the world to allow individuals to take part in the good life through the development of their capabilities. See, for example, William Ransome, ‘Beyond Capabilities: Wellbeing and Virtue’, The Good Life Conference (Brisbane, 12 February 2009). 17 Sampford, ‘Water Rights and Water Governance: A Cautionary Tale and the Case for Interdisciplinary Governance’; ‘Ethical Standard Setting for Global Incentives: Towards an Effective Regulatory Philosophy of Global Greenhouse Response: Opening Plenary’. 18 ‘Capabilities and Human Rights’, Fordham Law Review 66, no. 2 (1997). 19 This is not to say that good lives will be carbon neutral and that carbon will not be expended in meeting friends face to face as well as over skype. It is that lives that enable human flourishing can, in the future, be sustainable as such lives were in the past.

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(which is not possible even if it were morally acceptable) and paying those countries to cap their emissions (which is self-defeating while unsustainable images of the good life prevail, because one way or another, those being paid to live more sustainable lifestyles will seek the unsustainable ‘good life’) lack plausibility. A third possibility is that elites in less-developed countries will be induced to commit their countries to cap their emissions. While there is a long tradition of such corrupt deals, they should not be contemplated here because they are unsustainable for all parties to such deals. Concerns about Carbon Trading Schemes While the ultimate solution to climate change is the development of low-carbon lifestyles, it is important that economic incentives support and stimulate that search. The currently favoured approach is to set a cap and then cut total emissions with the trading of emission rights to provide incentives to those who can most efficiently cut their carbon and minimize the cost. This approach is unsurprisingly popular in states emitting the most carbon because it effectively gives them a property right to emit,20 something that is acknowledged in the literature.21 However, where an activity is shown to be harmful and unsustainable, it is not immediately obvious that the appropriate response is to create property rights to continue the harmful activity and to give the greatest property rights to those countries or corporations who have done the most harm and have been externalizing the costs on others who have suffered and continue to suffer from the harm done. This idea is popular in the west and with those who would profit by the operation of those markets. It is unpopular with non-western countries who would be given less rights. Indeed, why would they agree? Those who spent the last decade worrying about how to persuade the USA to take part do not seem to have appreciated this obvious objection and seemed to be surprised at the forcefulness of developing countries in the lead up to Copenhagen. This approach of creating property rights in unsustainable activities has the perverse effect of encouraging market players to look for the next unsustainable activity in which they can invest to benefit from ‘grandfathered’ rights. It will then be in their interests to maximize the harmful activity to maximize the property rights they will be given when the harm is recognized. This approach rewards polluters, exacerbates pollution and creates perverse incentives for those who know about pollution to invest in it rather than expose it.22 Faith in markets may be misplaced in this case, just as it is being sorely tested in the recent global financial crisis. The relevant commodity – carbon – is not well understood, and knowledge will thus be asymmetric, allowing market players many opportunities for arbitrage and taking advantage of the ignorance of those who need to access the market to continue their businesses. This leads to increased costs and risks of doing business (as the market for carbon fluctuates wildly) so that much of the extra cost of doing business will end up in the hands of market players rather than consumers or producers who have to pay higher prices. There is also the possibility that 20 A new right that appears in no declarations and in no texts – but which is proclaimed by some westerners. 21 ‘Issuing permits free of charge (or at low cost) explicitly recognizes the property rights which emitters have had in the past’. See, Antonia Cornwell and Don Gunasekera, ‘Essential Elements of Tradable Permit Schemes’, in Trading Greenhouse Emissions: Some Australian Perspectives, ed. Bureau of Transport Economics (Canberra: Commonwealth of Australia, 1998): 17. 22 This is not fanciful. I know of at least one merchant bank that was involved in trading water usage rights and was very keen to gain entry to carbon trading.

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everybody loses. New markets often get it wrong. The creators and ‘market makers’ for derivatives were very keen to enter into carbon trading. While many are wary of entrusting them with the contents of their piggy banks, it is unlikely that they will be entrusted with the future of the planet: there are many fresh and vivid memories of the way in which new markets are prone to fluctuation and profiteering from asymmetric knowledge. It is interesting that social democratic and green parties embrace carbon trading while conservatives query it. Honourable Malcolm Turnbull as minister for the environment was a strong supporter of trading of water rights in the Murray–Darling basin where too many water rights had been handed out for free. But he has recently said that: ‘emissions trading schemes have worked better in theory than in practice’.23 Revisiting Carbon Taxes in a New Form: ‘Carbon Added Tax’ The clearest alternative approach to carbon trading involves the taxation of unsustainable activity rather than granting rights to it. I would suggest a ‘carbon added tax’ (CAT) to operate like a value added tax (VAT). If a CAT operates like a VAT, carbon taxes will be ‘passed on up the line’ until they are ultimately paid by the consumer of the relevant goods and services.24 Like a VAT, it would be imposed on imports and rebated on exports so that industries from countries adopting the CAT would not be adversely affected and could even be imposed in a single country without it suffering detriment. The VAT treatment of imports means that those who keep outside the system of carbon taxes would still face the CAT when the goods are imported into a market within the system.25 It also means that the burden ultimately falls on those countries that consume high-carbon goods and services rather than those who produce them.26 Concerns about the inflationary effects such a tax or the increase in government revenues can be addressed by returning revenue to individuals through cuts in consumption tax (either across the board or targeted to produce more socially equitable outcomes – for example, zero-rating classes of goods typically consumed by lower-

23 See, Lenore Taylor, ‘Liberal Leadership: How Direct Action Works in Malcolm Turnbull’s Favour’, The Guardian (Australia), 4 February 2015. Those who support carbon taxes like to cite the use of sulphur trading by US power stations. This worked because those who were causing the problem and most of those affected were located in one country through a limited number of power stations. 24 It could be argued that price elasticity within countries means that the ultimate consumers will not pay (something that is rarely argued for VAT). However, as each country imposes a tax on the carbon included within imports, it becomes certain that the countries whose populations consume the most carbon-intensive goods and services will have to pay. 25 Some might question how the carbon emitted in producing imports is calculated. This is a reasonable question – though the question of measurement is an issue for goods produced locally and for carbon trading systems as well. The answer for carbon taxes is a simple one. The carbon emitted by producing particular classes of goods would be estimated on the basis of traditional practice and it would be open to any importer (or manufacturer) to demonstrate that they emit less carbon than that standard. If the cost of proving the lower carbon emissions is greater than the tax benefits to be gained, then they will run with the estimate. 26 It is a concern is that countries which produce high-carbon goods or components are treated as just as much of the problem as those who consume them. Much of the manufacturing, mining and smelting that was once done in the west is now done in China, Australia and so on. A carbon tax will address both consumption and production but the burden for the latter should be on the ultimate consumers not the producers.

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income groups).27 Of course, if a state feels the need to increase taxes or prices (to avoid deflation), a CAT could fulfil such functions through not being offset against reduced standard consumption taxes. A CAT provides both negative and positive price signals as low-carbon products actually decline in price (though slowly enough to avoid deflation of low carbon products). In general, the point is that there should be a move from taxing consumption to taxing carbon. The gradual28 substitution of carbon for standard consumption taxes provides room for huge price signals and incentives for reducing greenhouse and other emissions without affecting inflation.29 If CAT rose to replace consumption taxes at current rates (10–20 per cent are typical) the ultimate price effect would be greater than any of the carbon trading schemes contemplated. The government could announce a schedule of carbon tax increases over the next decade with a warning that the rate will be increased until carbon consumption was reduced to sustainable levels. This has the virtue of allowing industries to change, providing predictability but a clear message that the government has the determination and a relatively easy means to increase taxes on carbon until emissions targets are met.30 As carbon taxes became more effective, the CAT take might shrink and VAT could then be gradually returned without any effect on inflation. In those few places where the CAT required is more than the relevant consumption tax, it can be returned to individual citizens, or to individuals globally through a Global Minimum Income mechanism (see below). This approach is intentionally gradualist to avoid major disruptions and downturns during the transition but to give the strongest possible long-term incentive to develop low-carbon practices and long-term low-carbon industries. The pace of the rise will also need to take into account the global carbon budget. There is no grandfathering of emission rights as every emitter is taxed at the same rate but some might be concerned that high emitters are not being taxed at the rate of their externalized costs. The latter is true. This is partly because the calculation of externalized costs is very difficult in such a global phenomenon and partly because all we need to tax is sufficient to change behaviour in time to avert catastrophe – with the knowledge that the tax will rise as far as is necessary convincing high-carbon industries to change and new industries to seize the moment. 27 I note that others who press for increases in consumption tax rarely point to the inflationary effects despite otherwise pounding the table about inflation. In Australia, some business groups are pressing for an increase in consumption taxes – the CAT is a consumption tax and hence should, if they are consistent, meet with their approval. 28 It is strongly suggested that the increase be gradual but certain to give industries time to plan new and different kinds of investment rather than face the uncertainties and fluctuation of carbon markets run by the authors of the global financial crisis. 29 Although with the emerging potential for deflation, the inflationary effects might be particularly valuable to keep the general price level increasing. The proceeds could then be distributed to citizens or residents as a per capita payment. 30 It also deals with a vital question of ‘political will’. The more political pain the government faces in introducing a low carbon tax, the less likely future rises will be and the less behaviour is likely to change. The virtue of linking CAT rises to VAT falls is that no such political pain should be anticipated. The rises in CAT and falls in VAT can be written in to law and the lack of political and economic costs in following that path will give the government greater credibility. I liken the situation to those who wanted to tackle inflation with high interest rates. They believed that inflation would only be conquered when market players really believed that governments would carry through with the policy by having independent central banks setting the rate and having only one responsibility, to reduce inflation. There are many things wrong with the theory that were demonstrated by subsequent events. However, I do take seriously the importance that policies designed to change long-term incentives have political credibility. The ‘easy path’ of linking increases in CAT to decreases in VAT makes this a politically easy and painless policy – giving it great credibility.

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Distribution Issues within States The distributional effects of carbon taxes do need to be considered. They are likely to be regressive – especially given the fact that poorer Australians now live in outer suburbs that are more dependent on motor vehicle transport. This is one reason why it is important that taxes that are cut should be regressive taxes (like the Goods and Services Tax (GST)) rather than progressive taxes like income tax. Broader Distribution Problems, Leading to a New Approach to Global Taxation There are other emerging global problems in competition for land between growing food, growing biofuels and growing plantation timber for carbon sinks. All this has happened before – in taking over land for cash crops in developing countries in the late nineteenth and much of the twentieth century, and earlier for enclosures. The use of land for more lucrative pursuits is presumably justified if those who would have otherwise secured food from the relevant land get enough of the benefits to buy food from other sources. Yet, sometimes, the efficiency is merely gained from producing less value but with less labour – for example plantation timber vs. intensive farming – which may be a benefit to the landowner but not necessarily to society (where total gross domestic product (GDP) is reduced). We must avoid solutions in which unsustainable western lifestyles are preserved by taking over food growing land that would otherwise feed the world’s poor. The ultimate answer is that the carbon tax is returned to individuals. If sustainable carbon emissions total, for example, two tonnes of carbon per person, then each individual should receive a payment equal to the tax on two tonnes of carbon each year. These should be in payments to individuals rather than governments to ensure that they get through to those who need to benefit. It also reflects the fact that the poorest people in the world are generally in the most corrupt and undemocratic of societies whose governments are least likely to pass on the benefits of any carbon windfall. Ultimately, a more ambitious model should be considered in which a number of taxes become globally collected. These are made up of taxes that are increasingly uncollectible at a national level (for example, company tax and death duties) and those that should be imposed at a global level for systemic reasons (carbon taxes, Tobin tax, taxes on resources taken from the sea outside of national economic zones). These taxes could be collected together and provide a ‘Global Minimum Income’ for all persons on the planet. This model would follow the logic of ‘Basic Income’ and ‘Guaranteed Minimum Income’ schemes that recognize a right to resources based on citizenship and a duty to pay taxes based on economic activity. The value of the distribution would be limited in the richest countries but would have the potential to be totally transforming in poorer ones. Recognizing the Multiple Roles of Individuals While the architecture of sustainable global governance and sustainable globalization is largely institutional, we should never ignore the individual dimension. While we should demand that institutions act with integrity and work to establish and improve integrity systems, we should never forget that this is also a matter of individual or ‘personal’ integrity. The hard questions individuals ask about their values should include questions about how we can live our lives in sustainable ways. We should identify our own actions that can further our stated values – and the

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form of a sustainable good life to which we aspire. We must recognize that we can act at three levels: as citizens, as investors, and as consumers. When we act, we have responsibility for the consequences of our actions. The fact that we are acting as consumers and investors does not excuse us from that responsibility. However, between our actions and the achievement of intended consequences lie a number of institutions: as citizens we rely on political parties, parliaments and bureaucracies to implement our collective choices; as investors, we rely on advisors, trust funds, fund managers and corporations to connect our values with our investments; and, as consumers we rely on manufacturers, service providers, retailers and advertisers to inform our choices and deliver them. We empower these institutions by voting, investing and consuming. We must recognize that those institutions may well abuse that power and demand institutional changes to limit the ability of those institutions abusing the power entrusted to them. We should recognize that action on one front can affect action on other fronts and campaigns should press for action on all three fronts. We should especially seek to harness the ultimate owners of most corporations – superannuants. The latter have been actively discouraged from thinking of themselves as having any interests or values – effectively, and insultingly, required to be ‘economic man’. Their interests, however, are long term and not confined to the market return on their investments. They have other economic interests as employees, taxpayers and parents. An action that marginally increases the return on their investments but raises unemployment or requires taxpayer-funded clean-ups or bailouts is against their overall economic interests. The best entrepreneurs are those who build sustainable businesses; but a large part of the problem has been that the financial intermediaries who handle superannuants’ money are driven by shortterm incentives.31 Investors also have values that go beyond economic interests. They are not only entitled to seek to further these through their investments but are responsible for their choices. Shareholders’ values may vary but this merely means that funds should differentiate themselves on the basis of the values they seek to further. As most superannuation funds aim for diverse investments and align shareholdings with stock market indices, superannuants are becoming ‘universal investors’. Any attempt by businesses to externalize their costs hurts another one of the superannuants’ investments – and often the superannuants themselves. Accordingly, the externalization of costs is not a game that superannuants can afford and neither they nor the funds who invest their money should be willing to play. There is a direct line between ethical and socially responsible investment by individuals, funds adopting and implementing the UN Principles of Responsible Investment, and corporate social responsibility initiatives such as the Global Compact.32 Conclusion There will always be a role for markets. Their dynamic powers allow us to trade what we have for what we would prefer. While this power may be harnessed to serve our interests, untrammelled markets will not do so. Adam Smith famously wrote: ‘It is not from the benevolence of the butcher,

31 Ransome and Sampford, Ethics and Socially Responsible Investment. Recognition of the importance of this can be seen by the push of the UNFCCC to include business much more heavily in the lead up to the Paris Accord. 32 Ibid.

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the brewer, or the baker, that we expect our dinner, but from their regard to their own self-interest’.33 It might equally be said that it is not the malevolence of the mortgage broker that writes the NINJA loan or the ratings agency that anoints it ‘AAA’. It is not the malevolence of the arms manufacturer that invents the cluster bomb or the polluter who destroys the planet. It is from their regard for their own self-interest. Self-interest is an important driver but there are some other critical variables or preconditions that determine whether self-interest is channelled to put food on our plantation timber table or cluster bombs in an overheated and flood-prone backyard that has been repossessed by a zombie bank. Capitalism must be made to serve the interests of the communities in which it operates by making it responsive to the real values of the real people who own most of it rather than the values of those who manage our money in ways that maximize fee-generating transactions. This year is the semi-quincentennial anniversary of the book that Adam Smith regarded as his most important and which provided the essential grounding for the Wealth of Nations.34 The Theory of Moral Sentiments35 is now considered primarily to concern moral philosophy and the latter economics, so that some might say that moral philosophy or ethics is prior to and more important than economics. Yet Smith would not have said that. He and his philosophical contemporaries lived before the separation of disciplines and, like Jeremy Bentham, Smith would have seen little point in separating the modern disciplines of law, ethics, politics and economics whose separate formation post-dated their work and their insights.36 Governance requires their reintegration and their service to those our institutions are supposed to serve – us.37 At the same time, we need to think through our values, integrate those values into our own conception of the good life and then integrate our actions as citizens, consumers and investors so that we may, in fact, live sustainable conceptions of the good life.

33 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Oxford: Oxford University Press, 1776; repr., 1976): 26. 34 Ibid. 35 Adam Smith, Theory of Moral Sentiments (Oxford: Oxford University Press, 1759; repr., 1976). 36 See, for example, K. Haakonssen, ed. The Cambridge Companion to Adam Smith (Cambridge: Cambridge University Press, 2006), especially 1–21; Adrian Leftwich, Redefining Politics: People, Resources and Power (London: Methuen, 1983): 2–5. 37 Noel Preston, Charles Sampford, and Carmel Connors, Encourging Ethics and Challenging Corurption: Reforming Governance in Public Institutions (Sydney: The Federation Press, 2002); Sampford, ‘Water Rights and Water Governance: A Cautionary Tale and the Case for Interdisciplinary Governance’; ‘Global Transparency: Fighting Corruption for a Sustainable Future: From National Integrity Systems to Global Integrity Systems’.

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Chapter 13

Two Epistemic Errors in the Climate Change Debate David Coady

Introduction In this chapter, I identify two epistemic errors, which are made by a lot of climate change sceptics. These errors are hard to correct because they have acquired the status of conventional wisdom in our intellectual culture. Climate change sceptics are often portrayed as anti-science, but many of them are great fans of science (or at least that which they consider to be science), they merely, in some cases, have mistaken ideas about what science is. They are not entirely to blame for these mistakes, however, since these mistakes have been advanced as orthodoxies by a lot of scientists as well as by a lot of philosophers writing about science and the business of knowledge acquisition more generally. At present, almost all philosophical work on the issue of climate change has come from the field of ethics.1 In this chapter I will try to show that epistemology, the study of knowledge and justified belief, has much to contribute as well. Much of the public debate about climate change is about epistemic issues (What should we believe? What can we know?); if philosophers hope to contribute to that debate effectively and with integrity, they need to address these issues as well as the ethical issues. In what follows, I will argue that two common epistemic errors have made climate change scepticism more intellectually respectable than it deserves to be. The First Error One of these errors is the failure to recognize that the value of acquiring truth cannot be identified with, or reduced to, the value of avoiding falsehood. As far as I know the first philosopher to point this out was William James a little over a hundred years ago in the following passage from ‘The Will to Believe’: There are two ways of looking at our duty in the matter of opinion, – ways entirely different, and yet ways about whose difference the theory of knowledge seems hitherto to have shown very little concern. We must know the truth; and we must avoid error, – these are our first and great commandments as would-be knowers; but they are not two ways of stating an identical commandment, they are two separable laws … We may regard the chase for truth as paramount, and the avoidance of error as secondary; or we may, on the other hand, treat the avoidance of error as more imperative, and let truth take its chance.2 1 For an exception see, David Coady and Richard Corry, The Climate Change Debate: An Epistemic and Ethical Enquiry (Basingstoke, UK: Palgrave Macmillan, 2013). 2 William James, The Will to Believe and Other Essays in Popular Philosophy (New York: Cosimo, 2007): Part VII, 17–18.

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Two things should be said by way of clarifying James’s position in this passage. First, where James talks about ‘error’, it would have been clearer if he had talked about ‘falsehood’. The contrast he is drawing is between those who give priority to the goal of acquiring true beliefs, and those who give priority to the goal of not acquiring false beliefs. Second, James is using the word ‘may’ descriptively rather than normatively towards the end of this passage. We may choose to discharge one of these duties at the expense of the other, but in fact we should not. Indeed it would be wrong to treat either duty as more imperative than the other. In Kantian terms, these are imperfect duties (one positive and one negative): the demands of each will sometimes have to be balanced against the demands of the other. In Aristotelian terms, virtue consists in finding the golden mean between two vices: that of being excessively concerned to acquire true beliefs, and that of being excessively concerned not to have false beliefs. Although James, in effect, identifies two distinguishable vices of excess in this passage, he was particularly concerned to emphasize the latter vice (that is, excessive aversion to false beliefs), partly because he finds it in the work of W.K. Clifford, the immediate target of the above passage, but, more importantly, because he thinks it is a common vice amongst scientists and philosophers of a scientific bent. It is, James thinks, a form of intellectually timidity: It is like a general informing his soldiers that it is better to keep out of battle forever than to risk a single wound. Not so are victories either over enemies or over nature gained. Our errors are surely not such awfully solemn things. In a world where we are so certain to incur them in spite of all our caution, a certain lightness of heart seems healthier than this excessive nervousness on their behalf.3

Bertrand Russell directly addressed the analogical argument in this passage in his 1909 essay ‘Pragmatism’: The legitimate conclusion from this argument would be that, in such cases as William James has in mind, we ought to believe both alternatives; for in that case we are sure of ‘knowing’ the truth in the matter. If it were to be said that to believe both is a psychological impossibility, we would rejoin that, on the contrary, it is often done, and that those who cannot yet do it need only practice the ‘will to believe’ until they have learnt to believe that the law of contradiction is false – a feat which is by no means as difficult as it is often supposed to be.4

This is clearly a distortion of James’s position. James was not arguing that ‘knowing’ (or believing) the truth is our only intellectual duty; a position that would indeed imply that there is nothing wrong with believing everything (or everything we can), including contradictions. Russell, quite perversely, took James’s criticism of intellectual timidity to be an endorsement of intellectual recklessness. James did not say (or imply) that a general should be indifferent to casualties amongst his own soldiers; he merely said that they are not the only thing a general should be concerned about. He should also, for example, be concerned to inflict casualties on the enemy. Similarly James did not say (or imply) we should be indifferent to false beliefs. He merely stressed that avoiding them is not our only intellectual imperative; in particular he stressed that we should be concerned to pursue true beliefs as well as to avoid false ones.

3 Ibid., 19. 4 Bertrand Russell, ‘Pragmatism’, Edinburgh Review 209 (1909): 366.

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Although James was clearly right about this, Russell has so far won the public relations battle, both inside and outside academic philosophy. As we saw, James complained that the distinction between our duty to pursue truth and our duty to avoid falsehood had been neglected in the theory of knowledge (that is, epistemology) ‘hitherto’; it seems that it was equally neglected henceforth. William Alston, in his classic essay ‘Concepts of Epistemic Justification’, for example, talks of ‘maximizing truth and minimizing falsity’ as ‘the aim’ (as if it is a single aim, rather than two distinguishable aims) defining what he calls ‘the epistemic point of view’. Not only does he fail to distinguish these aims, he falls into the other trap James warned us against: that of ignoring the former aim altogether, saying that ‘one could best achieve the aim [that is, maximizing truth and minimizing falsity] by restricting one’s belief to those that are obviously true’.5 That would indeed be a good way to achieve the aim of minimizing falsity, but it would not be a good way to maximize truth, a goal that would require a more risk prone epistemic strategy. More recently, Nicolaj Nottelmann has also referred to ‘the aim of maximizing truth and minimizing falsehood’, and worried that if our cognitive activities are to be judged by our success at achieving it ‘it would seem that for example, a stone comes out cognitively optimal, as it does not hold any beliefs at all, hence no false beliefs’.6 Like the person who only believes obvious truths, the stone has performed its duty not to believe falsehoods admirably (since both presumably believe no falsehoods), but it has failed, even more wretchedly than such a person, when it comes to its duty to believe truths (since it does not believe anything, a fortiori it does not even believe obvious truths). Although many philosophers fail to distinguish between seeking truth and avoiding falsity, the only philosopher I am aware of who actually argues that they should not be distinguished is Alvin Goldman. Goldman argues that the pursuit of truth and the avoidance of falsehood can be blended into ‘a single magnitude or quantity’,7 and hence they are really just two ways of talking about the same thing. His argument, though flawed, is instructive. First, he says that the ‘trichotomous’ approach to epistemology, in which we talk of belief, disbelief, and suspension of judgment (or having no opinion) should be translated into an approach in which we talk only of degrees of belief (identified with subjective probabilities) ranging from 0 to 1. Belief simpliciter can be identified with having a degree of belief close to 1, disbelief simpliciter can be identified with having a degree of belief close to 0, and suspension of judgement (or having no opinion) can be identified with having a degree of belief close to 0.5. Now, consider a particular true proposition, p: having a high degree of belief in this truth is equivalent, he says, to having a low degree of belief in the falsehood not-p. So, the value of true belief (that is, of having a high degree of confidence in a particular truth) is equivalent to the value of error avoidance (that is, of having a low degree of confidence in its negation). The central flaw in Goldman’s argument is its identification of having no opinion with having a roughly 0.5 degree of belief. This is clearly a false equivalence. Consider, for example, someone who has never thought about whether anthropogenic climate change (henceforth ACC) is occurring; such a person will have no opinion about the matter, but that person obviously does not have a roughly 0.5 degree of belief in the proposition ‘ACC is taking place’. Goldman’s argument presupposes that everyone has some degree of confidence – high, low, or in between – in every proposition. But this is not true. There are many propositions we adopt no doxastic attitude towards 5 William Alston, Concepts of Epistemic Justification (Ithaca: Cornell University Press, 1989; repr., Epistemic Justification). 6 Nikolaj Nottelmann, Blameworthy Belief: A Study in Epistemic Deontologism (The Netherlands: Springer, 2010): 55. 7 Alvin Goldman, ‘The Unity of the Epistemic Virtues’, in Pathways to Knowledge: Private and Public, ed. Alvin I. Goldman (Oxford: Oxford University Press, 2002): 58.

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at all; we neither believe nor disbelieve them, and we do not assign any subjective probability to them either. And it is precisely because some strategies lead us to form more doxastic attitudes than others that there can be a conflict between truth-seeking and falsehood-avoidance. Strategies which exclusively emphasize falsehood-avoidance will inevitably lead to fewer doxastic attitudes than strategies which exclusively emphasize truth-acquisition. Outside academic philosophy, Russell’s undeserved victory has also been evident and much more insidious. Russell’s slogan that the ‘will to doubt’ is better than ‘the will to believe’ has had an unfortunate impact across our intellectual culture, and seems, to a significant extent, to be responsible for the wrongheaded idea that there is something virtuous, indeed something particularly scientific, about doubt and scepticism. The most visible contemporary manifestation of this idea is the current fad for so-called ‘scientific scepticism’, promoted by the International Skeptics Society, which has over 55,000 members, including Richard Dawkins, popular astronomer, Neil deGrasse Tyson and Bill Nye (the science guy). It is clear that the term ‘scientific scepticism’ (or ‘scepticism’ for short) has acquired positive connotations. However, like many expressions with positive connotations, it has become less and less clear what it means as more and more people use it to describe their own views, or the method by which they acquired those views.8 Those who call themselves ‘scientific sceptics’ are clearly devoted to encouraging belief in the findings and methods of that which they consider to be genuine science and discouraging belief in that which they consider to be pseudoscience. But the science/pseudoscience distinction, whatever exactly it amounts to, has nothing to do with scepticism on any reasonable understanding of the word. It is true that those who call themselves ‘scientific sceptics’ typically encourage scepticism about some things (for example, alien visitations, cryptozoology and magic), but it is equally true that they discourage scepticism about other things (for example, physics, chemistry and biology). Many proponents of scientific scepticism would reject the last part of this claim, saying that they encourage scepticism even about these sciences, but their alleged scepticism should be treated with scepticism. What they seem to mean by ‘scepticism’ in this context is that we should not believe any claims (including the claims of science) without sufficient evidence, where ‘sufficient evidence’ is understood to mean something like ‘evidence that the claims in question are significantly more likely to be true than not’. This places the scientific sceptics squarely in the freethinking tradition of W.K. Clifford, who famously said ‘it is wrong always, everywhere, and for anyone to believe anything upon insufficient evidence’.9 Now it might seem that this is a very good principle because it is about respecting evidence, and that it is deserving of the name ‘scepticism’, because it is about not believing certain things. But in so far as we are concerned to respect evidence, we should be concerned, not only with our negative duty to withhold belief when the evidence does not warrant it, but also with our equally important positive duty to believe when the evidence does warrant it (this was of course precisely the point James was making against Clifford in the above passages). Once this point is acknowledged, scientific scepticism reduces to the idea philosophers are accustomed to calling evidentialism, that our beliefs (and our degrees of belief) should be determined by the available evidence and nothing else. Much of the public debate about climate change consists, in effect, of 8 Expressions with negative connotations can undergo a similar evolution. For example, it has become less and less clear what the expression ‘conspiracy theory’ means as more and more people use it to describe the views of people they disagree with. See, David Coady, What to Believe Now: Applying Epistemology to Contemporary Issues (Chichester: Wiley-Blackwell, 2012): Chapter 5. 9 William Kingdon Clifford, ‘The Ethics of Belief’, in The Ethics of Belief and Other Essays by W.K. Clifford, ed. Leslie Stephen and Frederick Pollock (London: Watts, 1877; reprint, 1947): 77.

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people accusing those they disagree with of violating this principle, by allowing their beliefs to be determined by their desires or emotions, rather than the evidence. One side will often accuse the other of refusing to face the truth because it is ‘inconvenient’; in other words, they accuse them of allowing their wishes to determine their beliefs. The other side often accuse their opponents of being motivated by a hatred of capitalism or industrialization. It is their desire to put an end to one or both of these things, they claim, rather than the evidence, which is determining their beliefs. Both sides accuse the other of failing to follow the evidentialist principle. The evidentialist principle is not always a good one. Sometimes you should forget about the evidence and engage in wishful thinking. As William James and contemporary sports psychologists alike have realized, some things are such that believing that they will happen makes it more likely that they will happen. If the thing in question is desirable, then one has a good reason for believing it will happen, even if the available evidence suggests that it is unlikely. However, it seems pretty clear that climate change does not present a situation of this kind. On the contrary, if there really is a problem, believing that there is not a problem is not going to make it go away. If anything it will make it worse. Hence, the evidentialist principle seems to be a good one in this case. However, we should not treat this principle as a sceptical principle or treat evidentialism as a species of scepticism. Those who do so are abusing language in a way which has the potential to cause great confusion, and which palpably has led to a great deal of confusion in the climate change debate. Michael Shermer, the founder of The Skeptics Society, editor of its magazine Skeptic, and regular contributor to Scientific American, has defined scepticism as a matter of finding ‘the balance between doubt and certainty’.10 Shermer is right that we should seek this balance; this is an ideal closely related to James’s ideal of balancing our duty to pursue truth against our duty to avoid falsehood. However, neither of these ideals are sceptical ideals. Calling them ‘sceptical’ implies wrongly that science is more about doubt than it is about certainty, and that avoiding falsehood is more important than acquiring truth. In other words, it encourages an attitude of intellectual timidity and an excessive concern about the dangers of believing falsehoods and of overconfidence. The proponents of scepticism (or scientific scepticism) seem (at least in their theoretical pronouncements) to be overly concerned about acquiring false beliefs generally, however there is one particular category of false belief that they tend to be especially worried about: those that are the product of false testimony. The idea that we should be particularly sceptical of testimony (that is the written or spoken assertions of others) is closely associated with the scientific revolution of the early modern period. The motto of the Royal Society was (and still is) ‘Nullius in Verba’, which may be translated as ‘Nothing on Testimony’. John Locke, one of the most prominent spokesmen for the new science, gave voice to this form of scepticism in the following passage: I hope it will not be thought arrogance to say, that perhaps we should make greater progress in the discovery of rational and contemplative knowledge if we sought it in the fountain, in the consideration of things themselves, and made use rather of our own thoughts than other men’s to find it: for I think we may as rationally hope to see with other men’s eyes as to know by other men’s understanding. … The floating of other men’s opinions in our brains makes us not one jot the more knowing, though they happen to be true. What in them was science is in us but opiniatrety.11

Since most people’s beliefs about climate change (especially their beliefs about the factual as opposed to the ethical issues) are heavily dependent on what others tell them, Locke’s principle 10 Michael Shermer, The Science of Good and Evil. (New York: Times Books, 2004): 2. 11 John Locke, An Essay Concerning Human Understanding (London: Dent, 1961): 58.

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implies that most people’s opinions about climate change are just opinions, not science and not genuine knowledge. This may seem plausible, however a little reflection shows that it’s not just the views of laypeople or non-scientists on this subject that are heavily dependent on the testimony of others, but everyone’s. For example, no one arrived at the conclusion that average global temperatures have increased over the last century on their own, that is, entirely on the basis of their own observations (or their own unaided reason). Rather, they reached this conclusion (to a great extent) by relying on the testimony of thousands of people who have taken measurements and made calculations over a long period of time all around the world. Locke’s position underestimates the extent to which scientific practitioners, and others working at the coal-face of knowledge acquisition, are reliant on the testimony of others. This was true even in Locke’s time;12 it is much more so now, at the beginning of the twenty-first century, when human knowledge is much more extensive and (partly as a result) much more specialized. Cognitive labour is divided, to borrow Phillip Kitcher’s13 phrase, in such a way that the general public is heavily reliant on what scientists tell them, and individual scientists are heavily reliant on what other scientists tell them. George Monbiot, one of the most prominent public opponents of climate change scepticism, thinks that science is sending a contradictory message: The detail of modern science is incomprehensible to almost everyone, which means that we have to take what scientists say on trust. Yet science tells us to trust nothing, to believe only what can be demonstrated. This contradiction is fatal to public confidence.14

There are two mistakes in this passage. First, the detail of modern science is not merely incomprehensible to almost everyone, it is incomprehensible to absolutely everyone. This is the case, not only if we consider science as a whole but even if we restrict our attention to the practice of climate science. All the scientists on whom we rely for our opinions on climate change are themselves reliant on other scientists for their opinions on climate change. An oceanographer who uses a robotic probe to measure the temperature of water 2,000 metres deep, for example, relies on the probe’s software behaving as its programmer said it would. The programmer relies on the probe’s hardware behaving as described by its designer, who in turn relies on the claims of solidstate physicists. The oceanographer cannot be expected to comprehend the science involved in every step of every such chain. Trust and integrity thus necessarily permeate every part of the overall scientific enterprise. This may make the problem Monbiot describes seem even worse, but fortunately he is wrong about something else; there is no contradiction between having an attitude of trust and believing only what can be demonstrated, because sometimes (indeed quite often) it can be demonstrated that we should be trusting, because some people are demonstrably trustworthy, at least in certain contexts and about certain subjects. If science really did tell us to trust nothing (or no one), then science would be giving us bad advice. But science does not tell us any such thing,15 though many scientists (and philosophers) have unwisely said words to this effect. 12 For example, in 1682 Edmund Halley noticed similarities between a comet he was observing and comets reported by earlier astronomers in 1531 and 1607. He inferred that they were all the same comet, and successfully predicted its return in 1758. 13 Phillip Kitcher, ‘The Division of Cognitive Labor’, Philosophy of Science 87 (1990). 14 George Monbiot, ‘The Trouble with Trusting Complex Science’, The Guardian, 9 March 2010. 15 Of course science itself does not really tell us anything, though scientific institutions and individual scientists do.

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The idea that there is something scientific (and hence good) about scepticism in some sense if only we could say what that sense is, has led to a lot of confusion in the public debate about climate change. What is a climate change sceptic? The most natural, and I think correct, answer to this question is that he or she is a person who, after considering the matter, either does not believe in ACC (note that not believing does not entail disbelieving), or does not believe that it is on balance a bad thing, or does not believe that we (either individually or collectively) are obliged to take action to mitigate it. This disjunctive concept seems to accord well with the usage of those who describe themselves as ‘climate change sceptics’. It fits much less well with the usage of their opponents, many of whom insist that it is they who are the genuine sceptics (often they reserve the terms ‘denialist’ or ‘science denialist’ for their opponents). The Garnaut Review, for example, refers to ‘the so-called sceptics’16 who do not accept the science of climate change. Climate change is of course, to a great extent, a political issue, and the obsessive fear of false beliefs and of overconfidence that is such a striking feature of our intellectual culture, has political implications. When Bertrand Russell wrote a paper called ‘The Need for Political Scepticism’ in which he said that ‘any well-intentioned person who believes in any strong political movement is merely helping to prolong that organized strife which is destroying our civilization’,17 he may have been right (though personally I doubt it). Now, however, it seems very clear that the greatest threat to our civilization comes not from those with strong political convictions, but from those who lack them and justify their moral and intellectual timidity to themselves and others by appealing to the alleged virtue of scepticism. The Second Error I noted above that everyone is highly dependent on the testimony of others for their opinions about climate change. In particular, people (such as myself) who are not climate scientists and who believe in ACC are highly dependent on the testimony of climate scientists for that belief. The main piece of evidence (though not the only one) that we have is the fact that the overwhelming majority of climate scientists have testified that ACC is happening (or at any rate, have testified to something which entails that ACC is happening). Now some climate sceptics doubt or deny that such a consensus (or near consensus) over ACC exists, but many (perhaps most) of them accept that it exists but deny that that it constitutes genuine evidence for ACC. What should we make of this? Once again there is a mistaken doctrine, which is widely accepted, in academic philosophy and our intellectual culture more broadly, which appears to support the climate change sceptic’s position. This is the independence principle: that a consensus (or near consensus) of expert opinion is only evidentially significant to a non-expert if and to the extent that the parties to it have arrived at it independently of one another. If this were right, the consensus (or near consensus) of opinion amongst climate scientists about the reality of ACC would not be a good reason for the rest of us to accept it, since the scientists in question have palpably not converged on this conclusion independently of one another. The evidence on which climate science is based is too extensive, too varied in kind, and too widely distributed in space and time for that to be possible.

16 Ross Garnaut, The Garnaut Review 2011: Australia in the Global Response to Climate Change (Cambridge: Cambridge University Press, 2011): 106. 17 Sceptical Essays (London: George Allen & Unwin, 1928).

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I will argue that the independence principle is false, and hence the fact that climate scientists are highly epistemically dependent on one another, and on earlier scientists, does not lessen the evidential significance of their consensus (or near consensus) for the rest of us. But first I want to establish that the independence principle is really widely accepted by academic philosophers, so much so that it is reasonable to say that there is a consensus amongst academic philosophers over the truth of it (though, unlike the consensus over ACC, this is not a consensus which in my opinion should be accepted). So here are some contemporary philosophers who have advocated it in one form or another. Thomas Kelly claims that when evaluating testimonial evidence ‘numbers mean little in the absence of independence’.18 Similarly, Adam Elga claims that the accumulation of testimony on one side of an issue ‘should move one only to the extent that one counts it as independent from opinions one has already taken into account’.19 He goes on to describe this view as ‘completely uncontroversial’ and says that ‘every sensible view on disagreement should accommodate it’. Finally, Ben Almassi endorses the view quite neatly in the following passage: Greater numbers should not lend more credence to a position unless one reasonably believes its individual adherents have come to their beliefs via somewhat independent processes. The appropriate weight is a function of the numbers of experts on each side and their relative epistemic independence as gauged by the listener.20

It is not only professional philosophers who accept this view. In The Wisdom of Crowds, for example, James Surowiecki,21 claims that crowds are only ‘wise’ when the individuals who make up the crowd are ignoring the opinions of other members of the crowd and Richard Dawkins has criticized trial by jury as an unreliable way of establishing the truth on the grounds that jurors do not reach their conclusions independently of one another.22 This last example, in particular, should make us pause and begin to suspect there is something wrong with the independence principle. Would jury deliberations really be more reliable if jurors were compelled to reach their conclusions independently of one another by, for example, disallowing communication between them? Climate change, I hope to make clear, is another case that should make advocates of the independence principle think again. As we have seen, many people view the independence principle as an obvious truth that requires no argument. Once again, Alvin Goldman is an exception. His argument for the principle focuses on the limiting case, in which one opinion holder, Y, is entirely dependent on another, X, for her opinion H. Let X(H) be X’s believing H and Y(H) be Y’s believing H. Goldman presents his formal argument for this position in Bayesian terms. A novice should update his or her belief in H in the light of the evidence that X believes H by assigning it the ‘new’ probability: (1) P(H/X(H)) (that is, the probability of H given X believes H)

18 Thomas Kelly, ‘Peer Disagreement and Higher-Order Evidence’, in Disagreement, ed. Richard Feldman and Ted A. Warfield (Oxford: Oxford University Press, 2010): 148. 19 ‘How to Disagree About How to Disagree’, ibid., 177. 20 Ben Almassi, ‘Book Review: The Philosophy of Expertise (Evan Selinger and Robert Crease (Eds)’ Ethics 117, no. 2 (2007): 378. 21 James Surowiecki, The Wisdom of Crowds (New York: Doubleday, 2004): 65. 22 Richard Dawkins, A Devil’s Chaplain: Reflections on Hope, Lies, Science, and Love. Orlando (Orlando, Florida: Harcourt, 2003): 38–41.

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After learning that Y believes H as well, the novice should again update his or her degree of belief in H; this time assigning it the following probability: (2) P(H/X(H)&Y(H))

In general, (2) will be greater than the former, however, as Goldman spills some ink demonstrating, if Y is totally dependent on X for his or her belief in H, these values will be the same. Hence, in this case, updating the novice’s degree of belief from the former to the latter should not increase his or her confidence in H. Although mathematically impeccable, there is an unjustified presupposition in Goldman’s argument, which is that (1) will remain constant throughout the novice’s enquiry. Bayesian probabilities are subjective and can change over time (indeed that’s the point of them). It is therefore wrong to think of a Bayesian probability as something that has, in Goldman’s words, ‘already been taken into account’. Goldman’s argument assumes, in effect, that knowing or justifiably believing that (1) and (2) are equivalent is a reason for the novice to assign a lower value than he or she otherwise would to the latter, but this ignores the possibility that it might instead be a reason to assign a higher value than he or she had previously assigned to the former.23 Why should we consider the latter possibility? Because the existence of a person who is dependent on another with respect to a proposition can itself be evidence in favour of that proposition. Suppose, that Y is dependent on X for her belief that H, because Y knows or is justified in believing that H is within a domain in which X is an expert. Y believes H because X does, and would do so even if H were false, but Y’s concurrence with X still provides a novice with evidence for H, because the novice rationally believes Y to be a reliable judge about whether X is a reliable judge about whether H is true. The novice’s confidence in X’s expertise concerning H is rationally increased by his or her confidence in Y’s meta-expertise. Y’s meta-expertise consists in Y’s knowledge of (or justified belief about) the scope and extent of X’s expertise. Although meta-expertise is distinguishable from first-order expertise conceptually, they overlap to a great extent in practice. Because experts typically work closely with other experts, they often have considerable meta-expertise as well as first-order expertise, that is, they are often particularly good at recognizing other experts in their field. They are often also good at recognizing which experts have greater expertise than themselves. For this reason, experts need not arrive at their conclusions independently of one another in order to be justifiably confident of those conclusions. Their meta-expertise may allow them to recognize which experts are most likely to have correct opinions about a given issue, and come to share those opinions for that reason. When they do that, it is evidence, from a lay perspective, that the opinions in question are correct. So, for example, the fact that the vast majority of climate scientists accept the temperature records published by the National Ocean and Atmospheric Agency in the USA or the Hadley Climate Research Unit in the UK is evidence, from a lay perspective, that the scientists involved in producing this data are experts, and hence evidence of the reliability of the data. The more experts and meta-experts (often the same people) who attest to a view, and the fewer who deny it, the more reason laypeople have to accept it. This will remain true regardless of 23 In this argument, I have been assuming that the novice discovers that X believes H before discovering that Y believes H. What if the novice simultaneously discovers that X and Y believe H? Just as Bayesian probabilities can change over time, they can vary across possible situations (or worlds). So, we cannot assume that knowing or justifiably believing that (1) and (2) are equivalent is a reason to assign a lower value than would otherwise have been assigned to the latter, rather than a reason to assign a higher value than would otherwise have been assigned to the former.

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whether, or to what extent, they have formed their opinions independently of one another. Hence, the position of Goldman et al. that ‘a follower’s opinion does not provide any additional grounds for accepting a guru’s view’24 is not generally true. It is only true when there is reason to believe that followers are unreliable judges of gurus. Many influential climate sceptics have an ideal of science as the province of individual geniuses working in isolation from one another. Ian Plimer,25 for example, claims that most scientists are ‘anarchists’ who accept no authority and who are indifferent to the opinions of others; he goes on to berate climate scientists at great length for their failure to live up to this ideal. But this was always a false ideal and its falsehood is particularly apparent in the case of contemporary climate science, which is and needs to be a highly interdisciplinary and collaborative enterprise in which all participants are highly dependent on those around them and on those who have gone before. This fact should not undermine the significance, from a lay perspective, of the consensus it has reached. In fact this consensus is significant for everyone, not just laypeople. Even the greatest expert should consider the possibility that she is mistaken if almost all the other experts think she is mistaken, and more confident that she is right if almost all the other experts think she is right. Conclusion In the terminology of Chapter 2’s Comprehensive Integrity Framework, my enquiry has been into what we should want from science, which includes the purposes of science as an institution – its ‘public institutional justification’ (PIJ). Because many philosophers, scientists and ordinary people wrongly perceive scepticism as a scientific value, and exaggerate both the possibility and desirability of scientists forming their beliefs independently of one another, they downplay both the importance of confident accurate belief and the significance of testimonial evidence. These mistakes impact upon the climate regime and its capacity to fulfil its PIJ. The climate regime’s context-integrity includes ordinary citizens’ beliefs and values, inasmuch as they can act, lobby and vote on the issue. So too, the regime’s coherence-integrity includes the regime’s scientific sub-institutions, such as the Intergovernmental Panel on Climate Change (IPCC). Creating a default suspicion against testimony, and in favour of scepticism, constructs a socialepistemic environment hostile to the type of strong beliefs necessary for the urgent action required for the climate regime to fulfil its purpose.26

24 Alvin Goldman et al. ‘Experts: Which Ones Should You Trust?’, Philosophy and Phenomenological Research 63 (2001): 102. 25 Ian Plimer, Heaven and Earth: Global Warming and the Missing Science (Ballan Vi: Connor Court Publishing, 2009): 14. 26 I am very grateful for feedback from all the participants at the Climate Integrity Workshop.

PART IV Marshalling Human Rights to the Cause

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Chapter 14

The Contribution of Human Rights to the Effectiveness and Integrity of the Global Carbon Regime Bridget Lewis

Introduction While it is now widely accepted that climate change will impact on the enjoyment of human rights there is still considerable debate as to how this fact should influence international responses to climate change.1 The enjoyment of rights to life, health, adequate food, water and housing, and self-determination are all under threat from climate change, as well as from adaptation and mitigation measures taken to address it. Furthermore, there are also human rights concerns relating to the processes through which these measures are decided upon and implemented. It has been argued that we should have greater regard for human rights principles when developing the next phase of the global carbon regime in the hope of devising a framework which is better equipped to address these negative human rights impacts. This chapter argues that greater use of human rights principles in the global carbon regime would not only help minimize the human rights impacts of climate change, but could also improve the effectiveness and integrity of the regime itself. Human rights law has developed a set of principles and minimum standards that can be used to identify priorities and help resolve conflicts between competing interests. Further, states already accept numerous obligations under human rights law which could be leveraged to encourage them to take stronger action on climate change. Pressure might also be exerted on states by harnessing the moral and normative weight of human rights. By framing climate change as a human rights issue there is potential to change the discourse

1 Sara C. Aminzadeh, ‘A Moral Imperative: The Human Rights Implications of Climate Change’, Hastings International and Comparative Law Review 30, no. 2 (2006–2007): 231–65; Derek Bell, ‘Does Anthropogenic Climate Change Violate Human Rights’, Critical Review of International Social and Political Philosophy 14, no. 2 (2011): 99; Simon Caney, ‘Human Rights, Responsibilities and Climate Change’, in Global Basic Rights, ed. Charles Beitz and Robert Goodin (Oxford: Oxford University Press, 2009): 227; Edward Cameron, ‘Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach’, Georgia Journal of International and Comparative Law 38, no. 3 (2010): 673–716; Meinhard Doelle, ‘Climate Change and Human Rights: The Role of International Human Rights in Motivating States to Take Climate Change Seriously’, Macquarie Journal of International and Comparative Environmental Law 1, no. 2 (2004); Stephen Humphreys, ed. Human Rights and Climate Change (Cambridge: Cambridge University Press, 2010): 477; John Knox, ‘Climate Change and Human Rights Law’, Virginia Journal of International Law 50, no. 1 (2009–2010): 439; Marc Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’, Harvard Environmental Law Review 33 (2009); Ole Pedersen, ‘Climate Change and Human Rights: Amicable or Arrested Development?’, Journal of Human Rights and the Environment 1, no. 2 (2010): 236; Laura Westra, ‘Climate Change and the Human Right to Water’, ibid.: 161; Daud Hassan and Awal Khan, ‘Climate-Change-Related Human Rights Violations’, Environmental Law and Policy 43, no. 2 (2013).

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surrounding climate change to emphasize the human impacts, thereby focusing attention on the need to address the problem, rather than the costs of doing so. After outlining the various ways in which a human rights-based approach could improve the effectiveness of climate action, this chapter goes on to suggest a number of ways in which human rights principles could enhance the integrity of the global carbon regime. In one sense, human rights are already relevant to the context-integrity of the carbon regime. Human rights law obliges all states to some extent and the United Nations holds respect for human rights to be a fundamental principle governing all its activities. These factors inevitably influence the way states negotiate, implement and enforce international commitments with respect to climate change. However, this chapter considers the ways in which human rights principles can and, it is argued, should be more explicitly incorporated into the carbon regime, and the effects this would have on the consistencyintegrity and coherence-integrity of the regime. The chapter looks at the way human rights can be emphasized as part of the underlying values and purposes of the regime so as to form part of its public institutional justification (PIJ). It then examines the way that fundamental human rights concepts such as non-discrimination, equality and procedural fairness would apply to ensure that the institutions within the regime act consistently with its purposes. A Human Rights-Based Approach to Climate Change This section will demonstrate the applicability of human rights to climate change by briefly outlining the potential impacts of climate change on human rights, as well as the potential impacts of adaptation and mitigation measures. It will then address the instrumental benefits of incorporating human rights principles into the global carbon regime, not only in terms of promoting the enjoyment of human rights but also as a means of leveraging state support for greater action. Human Rights Impact of Climate Change The Intergovernmental Panel on Climate Change (IPCC) predicts with confidence that climate change will cause environmental impacts with potential consequences for a range of human rights that are guaranteed under international law. Heatwaves and droughts,2 heavy precipitation events and flooding,3 and more frequent and severe weather events will impact significantly on the rights to life,4 health,5 food and water.6 The rights to freedom of movement and to an adequate 2 Lisa V. Alexander et al., ‘Summary for Policymakers’, in Climate Change 2013: The Physical Science Basis. Contribution of Working Group 1 to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, ed. Thomas F. Stocker, et al. (Cambridge: Cambridge University Press, 2013): 23; Christopher B. Field et al., ‘Summary for Policymakers’, in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, ed. Christopher B. Field et al. (Cambridge: Cambridge University Press, 2014), 7, 15. 3 Alexander et al., ‘Summary for Policymakers’, 23. 4 ‘International Covenant on Civil and Political Rights (ICCPR)’ (999 UNTS 171, 16 December 1966): art. 6. 5 ‘International Covenant on Economic, Social and Cultural Rights (ICESCR)’ (993 UNTS 3, 16 December 1966): art. 12. 6 Ibid., art. 11.

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standard of living are threatened by rising sea levels and storm surges, with Arctic communities, Small Island States and low-lying mega-delta regions particularly at risk.7 The right to housing will be impacted as people are forced to move to more urban areas due to increasing pressures on livelihoods and food and water supplies. Climate change will exacerbate the risks to the large number of people who already reside in urban slums in unsafe areas such as fragile hillsides and flood-prone river banks.8 Mitigation and adaptation activities also have the potential to affect various rights, including the rights to health, freedom of movement,9 self-determination10 and indigenous rights. Changes to land use may have significant implications for people who rely on those lands for subsistence. Where mitigation activities involve forest management or the cultivation of biofuels, these new land use arrangements could affect people who relied on the land as a source of income, food or water. Changes to agricultural practices or crop varieties may also impact on the rights of people who rely on subsistence agriculture.11 The rights of indigenous peoples are also particularly threatened. For example, forestry-based mitigation mechanisms may involve the relocation of indigenous peoples or restrictions on their ability to reside in or use forest areas.12 There is also the concern that such mechanisms give increased control to governments or private actors and may create incentives for governments to overlook the rights of indigenous people.13 These risks are exacerbated by the fact that many indigenous peoples do not enjoy recognized tenure over their lands, with the result that they are not guaranteed to benefit financially from any transaction which relates to those lands.14

7 Field et al., ‘Summary for Policymakers’, 15. See comments by Raquel Rolnik (Special Rapporteur), ‘Rights to Adequate Housing: 13th Session Human Rights Council’ (2010): [13]. 8 See comments by Raquel Rolnik, Special Rapporteur on Adequate Housing, Human Rights Council Panel Discussion 2009 [13]; United Nations Development Programme, Human Development Report 2007/2008: Fighting Climate Change: Human Solidarity in a Divided World (New York: UNDP 2008): 9; UN Human Rights Council [UNHRC], ‘Annual Report of The United Nations High Commissioner for Human Rights and Reports of The Office of The High Commissioner and The Secretary-General’ (UN Doc A/HRC/10/61; HRC 10th Sess., Agenda Item 2, 15 January 2009): 37; Field et al., ‘Summary for Policymakers’, 18. 9 ‘International Covenant on Civil and Political Rights (ICCPR)’, art. 12. 10 Ibid., art. 1; ‘International Covenant on Economic, Social and Cultural Rights (ICESCR)’, art. 1. 11 Bridget Lewis, ‘Balancing Human Rights in Adaptation and Mitigation Policies’, in Climate Change and Human Rights, an International Law Perspective, ed. Ottavio Quirico and Mouloud Boumghar (London: Routledge, 2015). 12 Rowena Maguire, ‘Designing Redd1 to Be Just: Considerations for a Legally Binding Instrument’, Asian Journal of International Law 4, no. 1 (2014): 169; Ole Pedersen, ‘The Janus-Head of Human Rights and Climate Change: Adaptation and Mitigation’, Nordic Journal of International Law 80 (2011): 408; Naomi Roht-Arriaza, ‘Human Rights in the Climate Change Regime’, Journal of Human Rights and the Environment 1, no. 3 (2010): 224. 13 Peter Kostishack, ‘Respecting Rights in Climate Change Mitigation: The Debate About Redd’, International Human Rights Funders Group, 30 October 2009; Peter Newell, ‘Climate Change, Human Rights and Corporate Accountability’, in Human Rights and Climate Change, ed. Stephen Humphreys (Cambridge: Cambridge University Press, 2010): 126. 14 Kostishack, ‘Respecting Rights in Climate Change Mitigation: The Debate About Redd’, 408; Pedersen, ‘The Janus-Head of Human Rights and Climate Change: Adaptation and Mitigation; Frances Seymour, ‘Forests, Climate Change and Human Rights: Managing Risks and Trade-Offs’, in Human Rights and Climate Change, ed. Stephen Humphreys (Cambridge: Cambridge University Press, 2010): 207.

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Benefits of a Human Rights-Based Approach Climate change clearly has the potential to impact on a broad range of human rights and our responses to climate change should therefore be developed with the guidance of human rights principles. Not only would this ensure that our actions focus on the needs of those who will be most affected, but by doing so we can also address the inherent injustice of climate change: that those who are worst affected are commonly the least responsible for the problem and often the least able to protect themselves.15 There are a number of other instrumental benefits that can be gained from incorporating human rights principles into climate change responses. First, the way human rights law deals with competing rights could be instructive in framing a climate change regime that needs to reconcile conflicting interests. Second, the normative weight that comes with framing an issue as a human rights problem could help to motivate states to take greater action on climate change. This is bolstered by the framework of human rights obligations and enforcement mechanisms already accepted by states under international law that could be used to leverage stronger action. The benefits of adopting a human-rights approach to climate change have been recognized by a number of states and non-governmental organizations (NGOs) in advocating for stronger action. For example, Small Islands States have used human rights language to emphasize the impact of climate change on them and to try to secure greater assistance. Representatives of Small Island Developing States (SIDS) met in November 2007 to adopt the Male’ Declaration on the Human Dimension of Climate Change.16 The Declaration pointed to the impact of climate change on human rights and called on the United Nations Office of the High Commissioner for Human Rights (OHCHR) to conduct a detailed study on the relationship between human rights and climate change. The resulting report by the OHCHR was published in 2009 and concluded that climate change threatens the enjoyment of a wide range of human rights, including the rights to life, health, food, water, housing and self-determination.17 A number of developing states have called on the United Nations Framework Convention on Climate Change (UNFCCC) to take greater action in addressing the human impacts of climate change.18 States including Kiribati, the Maldives, the Marshall Islands and Tuvalu have pointed to the impact of climate change on the human rights of their citizens and called for greater reference to human rights in the agreement to be negotiated at the Paris Climate Conference in 2015.19 NGOs have also used human rights law and rhetoric to push for greater state action. Such advocacy has included bringing legal action before relevant bodies seeking to establish that human rights have been violated by states’ inaction on climate change.20 In the lead-up to the Paris 15 See Rowena Maguire and Lewis. Bridget, ‘The Influence of Justice Theories on International Climate Policies and Measures’, Macquarie Journal of International and Comparative Environmental Law 8, no. 1 (2012): 16. 16 ‘Male’ Declaration on the Human Dimension of Global Climate Change’ (14 November 2007), http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf (accessed 6 May 2015). 17 UNHRC, ‘Annual Report’ 2009. 18 For example, see the submissions of Maldives, Philippines, Bhutan and Bangladesh to the OHCHR, ‘Human Rights Council Panel Discussion on the Relationship between Climate Change and Human Rights: Summary of Discussions’, 15 June 2009. 19 UNFCCC, ‘UN Climate Change Newsroom’ (2015), http://unfccc.int/essential_background/ items/6031.php (accessed 6 May 2015). 20 Sheila Watt-Cloutier, ‘Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States’ (7 December 2005), http://www.inuitcircumpolar.com/files/uploads/icc-files/FINALPetitionICC.pdf (accessed 5 March 2015).

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conference, a large number of NGOs have called on the UNFCCC to ensure that human rights protections are included in the Paris Agreement.21 Despite the efforts of some states and NGOs to put the human rights effects of climate change more firmly on the agenda of climate change negotiations, to date human rights concerns have been incorporated typically in very generalized terms. The negotiating text for the Paris Conference of Parties in 2015 recognizes the links between climate change and human rights issues such as health, sustainable development and indigenous rights, but the role of human rights principles is largely limited to a general commitment by states to respect human rights in whatever mitigation and adaptation action they take.22 While the human impact of climate change has been recognized in previous climate agreements, human rights have yet to be meaningfully operationalized. It is argued that more specific engagement with human rights principles would yield a range of benefits that have yet to be fully capitalized upon. Balancing Competing Interests A fundamental challenge in devising a global carbon regime is the issue of balancing competing interests. Conflicts arise between the interests of developing and developed states, as well as between those of present and future generations. We must also balance the imperative of addressing climate change against the potential negative consequences of the measures employed to do so. These conflicts can be translated into human rights terms. For instance, limiting or modifying our adaptation and mitigation action in order to strictly protect human rights might produce strategies which are less effective in dealing with climate change overall, leading ultimately to other human rights issues elsewhere and in years to come.23 Further, developing states have argued that requiring them to reduce emissions threatens their development, and is likely to delay progress on fulfilling the full range of human rights. Human rights law provides some principles designed to help resolve these sorts of conflicts between competing rights. In general terms, restrictions on human rights are permitted provided they are necessary and proportionate to achieving a legitimate purpose and that they are implemented by law. The sorts of purposes which are acceptable justifications for limiting human rights include national security, public health or the need to protect the rights of others.24 Applying these principles, where a proposal for addressing climate change would have negative impacts on human rights, states would have to demonstrate that the action was necessary and that the resulting negative impact was proportionate to the objective of combatting climate change. Establishing proportionality can be problematic, given the breadth of the problem of climate change and the various ways its impact could be described depending on questions of effect, geography and time. At the very least though, these principles ought to guide states towards actions that have the least possible impact on the enjoyment of human rights. Further, human rights can be understood as minimum standards to which states must adhere. These standards set the limit below 21 Climate Action Network, ‘Submission to the Ad Hoc Working Group on the Durban Platform for Enhanced Action Calling Human Rights Protections in the 2015 Climate Agreement’ (7 February 2015). This submission was signed by over 200 organizations including Greenpeace International, the Centre for International Environmental Law, CARE International, Friends of the Earth, Oxfam, the World Wildlife Fund and Earthjustice. 22 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Negotiating Text: Work of the Contact Group on Item 3 (Geneva: UNFCCC, 2015), Preamble. 23 Pedersen, ‘The Janus-Head of Human Rights and Climate Change: Adaptation and Mitigation’, 408. 24 For example see ‘International Covenant on Civil and Political Rights (ICCPR)’, arts 18, 19, 21.

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which the impacts of climate change should not be allowed to fall. They can therefore operate to prioritize the needs of the most vulnerable populations.25 At the same time, a commitment to human rights requires a consideration of how our actions today will affect the ability of future generations to enjoy their human rights. While human rights law does not specifically grant rights to members of future generations, it is argued that the obligation on states to protect human rights extends to the interests of people who will become rights-holders in the future, such that states should not act now in a way which will adversely affect the ability of future generations to enjoy the same rights we presently enjoy.26 There is some debate about exactly what weight human rights should be given in comparison to other competing imperatives, including whether human rights should act as trumps over economic and other considerations.27 As will be discussed below, the moral force which comes with the human rights label may elevate the human impacts of climate change to a higher standing relative to other considerations.28 At the very least, by incorporating human rights principles into climate change negotiations alongside other factors, these principles can be integrated to help devise more equitable strategies for burden sharing while ensuring that the fundamental needs of vulnerable groups, including future generations, remain protected. Compliance Pull of Human Rights Framing climate change as a human rights issue could encourage stronger action from states on climate change. This compliance pull of human rights operates in two ways. The first relies on the moral weight that comes with the human rights label.29 Shabalala has argued that ‘human rights adds to the moral and ethical justifications for actions to mitigate and adapt to climate change’ and ‘could contribute to more explicitly articulating the equity justifications’ for action.30

25 See comments by Dalindyebo Shabalala in Office of the High Commission for Human Rights, ‘Human Rights Council Panel Discussion on the Relationship between Climate Change and Human Rights: Summary of Discussions’, [12]. See also Anne Parsons, ‘Human Rights and Climate Change: Shifting the Burden on to States?’, Sustainable Development Law and Policy 9 (2008–2009): 22. 26 For discussion of the human rights duties owed to future generations see, Bell, ‘Does Anthropogenic Climate Change Violate Human Rights’, 99, 101; Robert Elliot, ‘The Rights of Future People’, Journal of Applied Philosophy 6, no. 2 (1989): 162; Joel Feinberg, ‘The Rights of Animals and Unborn Generations’, in Responsibilities to Future Generations: Environmental Ethics, ed. Ernest Partridge (New York: Prometheus Books, 1981): 139; Ernest Partridge, ‘On the Rights of Future Generations’, in Upstream/Downstream: Issues in Environmental Ethics, ed. Donald Scherer (Philadelphia: Temple University Press, 1990): 40. 27 Daniel Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’, Georgia Journal of International and Comparative Law 38, no. 3 (2010): 514. 28 Ibid., 517. 29 Alexandre Kiss and Dinah Shelton, Guide to International Environmental Law (Leiden: Martinus Nijhoff, 2007): 238. See also John G. Merrills, ‘Environmental Protection and Human Rights: Conceptual Aspects’, in Human Rights Approaches to Environmental Protection, ed. Alan Boyle and Michael Anderson (Oxford: Clarendon Press, 1996): 25, 29; Dinah Shelton, ‘Human Rights and the Environment: Problems and Possibilities’, Environmental Policy and Law 38, no. 1/2 (2008): 44. 30 See comments by Dalindyebo Shabalala in Office of the High Commission for Human Rights, ‘Human Rights Council Panel Discussion on the Relationship between Climate Change and Human Rights: Summary of Discussions’, [12].

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Further, a human rights-based approach lends itself to telling the stories of the victims of climate change, and thereby serves as a powerful tool for advocacy.31 By promoting public awareness of the seriousness of climate change, human rights can help build public support for greater action and increase pressure on governments to take action.32 Limon has argued that, by focussing attention on the human impacts of climate change, governments are less able to: remain ambivalent to the face of human suffering, especially when that suffering is on a global scale and is man-made, than is the case with physical phenomena such as melting ice-caps or bleaching coral. Humanising climate change thus creates an ethical imperative to act that can with time translate into legal obligations.33

In a more legal sense, international human rights law creates a framework of obligations and enforcement mechanisms that could be harnessed to encourage greater action by states. The rights outlined above impose corresponding duties on states to take action. The prospect that a state might be subject to a human rights complaint based on its failure to take action on climate change may encourage all states to take stronger action. As Bodansky has argued: If the activities that contribute to climate change violate human rights law, then we do not need to wait for governments to agree to cut their emissions; our current practices are illegal already under existing law. We can make legal arguments about what countries must do, as opposed to policy arguments about what they should do.34

However, there are a number of challenges to establishing a violation of human rights based on climate change, and these should be acknowledged. One of the principal hurdles to be overcome is showing that a state owes a duty to the alleged victim. Put another way, while it is relatively simple to point to the negative human rights consequences of climate change, it is difficult to identify who is entitled to bring a claim and against whom. Conventionally, human rights obligations rest with states and are owed towards their citizens and people within their jurisdictions. This is expressed in the International Covenant on Civil and Political Rights (ICCPR), which provides that states must respect and ensure the rights of all individuals within their territory and subject to their jurisdiction.35 However, climate change is inherently a transnational problem, and the effects of one state’s actions will be felt in the territories of other (if not all) states. In order for human rights law to be fully able to address climate change, the duties of states need to extend beyond their borders and apply extraterritorially.36

31 Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’, 517; Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’, 451; Pedersen, ‘Climate Change and Human Rights: Amicable or Arrested Development?’, 248. 32 Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’, 517; Edward Cameron, ‘Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach’, ibid.: 711; Doelle, ‘Climate Change and Human Rights: The Role of International Human Rights in Motivating States to Take Climate Change Seriously’, 215; Pedersen, ‘Climate Change and Human Rights: Amicable or Arrested Development?’, 248. 33 Limon, ‘Human Rights and Climate Change: Constructing a Case for Political Action’, 451. 34 Bodansky, ‘Climate Change and Human Rights: Unpacking the Issues’, 517. 35 ‘International Covenant on Civil and Political Rights (ICCPR)’, art. 2. 36 Knox, ‘Climate Change and Human Rights Law’, 200.

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Even where it can be established that a state owes a duty to a particular individual or group affected by climate change, proving that the obligation has been violated is not a simple task. Significantly, claimants must demonstrate that the action or inaction of the accused state caused the negative human rights impact complained of. This is difficult because of both the complexity of the causal links involved and the long period of time between cause and effect.37 As Pedersen explains, ‘a significant and forensically problematic delay exists between the emission of gases and the manifestations of any actual harm’.38 The cumulative effect of greenhouse gas (GHG) emissions means that it may be impossible to attribute a particular effect to the actions of a given state. Further, some apparent impacts of climate change may be caused by a number of contributing factors other than global warming, complicating the issue of causation.39 Given that climate change is the result of the cumulative effect of the actions of most, if not all, states, it is extremely difficult to prove that one state’s actions, or even the actions of a grouping of the highest emitters, has caused the particular result to the standards of proof which would normally apply to similar claims. Further, as Roht-Arriaza explains, ‘it may be difficult to characterize “causing” climate change as itself a violation since it is not clear that, until recently, States knew or should have known the dangers of unrestricted greenhouse gas emission’.40 The challenges of proving a violation of human rights based on climate change no doubt lessen the compliance pull that human rights principles effect on states. Yet states have publically acknowledged their obligations to protect and fulfil human rights and this commitment, together with the moral weight that comes with designating something a human rights issue, can strengthen the claim on states to take further action, even where the risk of being found liable for a specific violation may not be particularly strong. The Contribution of Human Rights Principles to the Integrity of the Global Carbon Regime As well as improving the effectiveness of the global carbon regime in addressing the impacts of climate change, the application of human rights principles could also enhance the integrity of the regime itself. It is argued that this could be achieved in a number of ways, and this section seeks to present these with reference to the Comprehensive Integrity Framework described in Chapter 2. First, combating the negative impacts of climate change must be a principal objective of the global carbon regime, and would therefore comprise a fundamental part of its PIJ. As argued above, a human rights-based approach to climate change offers a number of instrumental benefits in addressing the problems of climate change. Consequently, human rights principles can be used to improve the consistency-integrity of the global carbon regime as a whole, by improving the regime’s ability to achieve its fundamental objective.

37 Cameron, ‘Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach’, 706; Pedersen, ‘Climate Change and Human Rights: Amicable or Arrested Development?’, 245–46. 38 ‘Climate Change and Human Rights: Amicable or Arrested Development?’, 246. 39 John Knox, ‘Linking Human Rights and Climate Change at the United Nations’, Harvard Environmental Law Review 33 (2009): 487. See comments by John Knox in, Office of the High Commission for Human Rights, ‘Human Rights Council Panel Discussion on the Relationship between Climate Change and Human Rights: Summary of Discussions’, [15]. 40 Roht-Arriaza, ‘Human Rights in the Climate Change Regime’.

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Given the significant impact of climate change on human rights, as outlined above, it is further argued that the global carbon regime ought to explicitly emphasize the fulfilment of human rights as a specific objective. It should also recognize the need to respect human rights in whatever mitigation, adaptation or other activities are undertaken by the regime. This has been done by the Conference of Parties (COP) to the UNFCCC, which has stated that, in all climate-change related activities, state parties should fully respect human rights.41 Were these human rights objectives to be explicitly included in the PIJ of the global carbon regime, then the consistency-integrity of the regime would be enhanced through the application of human rights principles to the processes by which climate change-related decisions are made and implemented. Even if institutions do not overtly reference human rights among their stated goals or values, the principles of human rights may nonetheless be relevant. The moral foundations of human rights are also the basis for many ethical principles such as equity, fairness and transparency. If an institution were to include these more general values in its PIJ then this could be seen to implicitly incorporate human rights principles, and adherence to human rights laws would help to ensure the institution acts consistently with those objectives and values. The specific rules contained in international human rights law could be seen as a ‘road map’ to achieving consistency-integrity. There are a number of specific human rights principles that, it is argued, have particular application in an institutional context and can apply to ensure that institutions act with integrity. Human rights, by their very nature, belong equally to all people, and the concomitant principles of equality and non-discrimination are fundamental to human rights law. Where the PIJ of an institution incorporates values of equity, fairness and transparency, human rights principles can be applied to ensure the institution acts consistently with those values. For instance, the principle of non-discrimination requires that decisions are made without reference to discriminatory factors, and that preferential treatment be justified based on relevant criteria. This operates to minimize the risk of corruption and inequity in the institution’s actions, and helps to achieve consistency with its stated values. The positive influence of the principles of equality and non-discrimination is enhanced by the requirements of a number of procedural rights that can be found in international law. These procedural rights are commonly applied in the context of environmental impacts but can also extend more broadly to apply to any situation where human rights might be infringed by a proposed action.42 In simple terms, the rights referred to here are: • the right to information about proposed action and the impacts which it might have;43 • the right of individuals to participate in any decisions which might affect them;44 41 UN Framework Convention on Climate Change [UNFCCC], ‘Report of the Conference of the Parties 16th Session: Cancun 29 November to 10 December 2010 (The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention)’ (Decision 1/CP.16, UN Doc FCCC/CP/2010/7/Add.1, 15 March 2011): 4. 42 Roht-Arriaza, ‘Human Rights in the Climate Change Regime’, 216–17; Dinah Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’, Stanford Journal of International Law 28 (1991): 103. 43 ‘Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters’ (2161 UNTS 447), art. 1; ‘International Covenant on Civil and Political Rights (ICCPR)’, art. 19(2). 44 ‘Aarhus Convention’, art. 1; ‘International Covenant on Civil and Political Rights (ICCPR)’, art. 1; ‘International Covenant on Economic, Social and Cultural Rights (ICESCR)’, art. 1; United Nations, ‘United Nations Declaration on the Rights of Indigenous Peoples: Resolution/Adopted by the General Assembly (UNDRIP)’ (A/RES/61/295, 2 October 2007): art. 10, 11, 19, 29, 30, 32.

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• the right to access to justice (the ability to challenge decisions through legal processes and/ or to an effective remedy where individuals suffer any negative impact).45 These procedural rights have application in the context of climate change, and particularly with respect to the adaptation and mitigation strategies which might form part of a global carbon regime. For example, any proposal to construct alternative energy facilities would need to incorporate an assessment of human rights impacts and the results of that assessment should be made publicly available. Affected persons would be entitled to participate in the decision-making processes relating to these activities, and to a remedy for any loss incurred. Adherence to these procedural rights will enhance both the consistency-integrity and coherenceintegrity of the global carbon regime in achieving the principal aim of combating climate change. Procedural rights provide a model for thoroughly assessing impacts and consulting with affected parties that should promote more evidence-based decision-making and more effective action. Participation requirements allow vulnerable groups to have more meaningful input into the process, while access to justice principles help to strengthen their claims and ensure more genuine consideration of their interests.46 By incorporating these procedural human rights into its processes, the global carbon regime can ensure coherence-integrity and build consistency-integrity with its primary objective. Furthermore, procedural rights could also help to promote consistency with other values that are incorporated into the PIJ. Rights of participation and access to information, together with the principles of equality and non-discrimination outlined above, ought to limit the potential for discriminatory or preferential treatment, thereby helping to fulfil the objectives of equity, fairness and transparency. Conclusion In these ways human rights can provide a set of principles according to which the global carbon regime could promote integrity both with its over-arching objective and the values that it seeks to uphold in undertaking its work. Given the significant impact which climate change has on human rights it is appropriate for the global carbon regime to explicitly incorporate human rights principles into its objectives and values. Once those principles are embedded, the substantive rules and principles of human rights law and the key procedural rights will help to ensure that the regime can act consistently with its objectives. It is argued therefore that a human rights-based approach to climate change not only ensures more effective outcomes but can also enhance the integrity of the global carbon regime itself.

45 ‘Aarhus Convention’, art. 1; ‘International Covenant on Civil and Political Rights (ICCPR)’, art. 2. 46 Cameron, ‘Human Rights and Climate Change: Moving from an Intrinsic to an Instrumental Approach’, 709.

Chapter 15

Mary Robinson’s Declaration of Climate Justice: Climate Change, Human Rights and Fossil Fuel Divestment Matthew Rimmer

Introduction: Everybody Matters In her biography, Everybody Matters: My Life Giving Voice, Mary Robinson explained how she became interested in the topic of human rights and climate change, after hearing testimony from African farmers, with Archbishop Desmond Tutu.1 She recalled hearing stories of how drought and flash flooding had ruined the lives of the farmers. After such experiences, Mary Robinson considered the importance of examining climate change as a question of justice and human rights. She observed that ‘these communities are not responsible for the emissions causing climate change, and yet they are disproportionately affected because of their already vulnerable geographic locations and their lack of climate resilience’.2 She commented that there were larger questions involved in terms of climate justice: ‘It isn’t just governments that are causing greenhouse emissions, it is us, the people … We have to change our lifestyles, wean ourselves off bad habits of consumption.’3 Robinson observed that there were questions of inter-generational and intra-generational justice: ‘This public dialogue about climate and the environment is challenging both old and young to think deeply about how we will forge an equitable sustainable future, one that safeguards our planet and is fair to a population predicted to rise to nine billion or more by 2050, the increase coming mainly from those large countries, with emerging economies, such as China, Brazil, and Nigeria’.4 Robinson suggested that there was a need to reconceptualize climate change: ‘As well as the nowiconic image of a polar bear drifting on a melting ice floe, we need the face of a poor subsistence farmer or indigenous woman, a face full of worry because her livelihood and way of life are being destroyed by climate change.’5 As a result of such experiences, Mary Robinson established a charity, the Mary Robinson Foundation – Climate Justice. She remembers her initial objective was to bring together the ‘principles of human rights with issues of sustainable development, and responsibility for climate change.’6 Robinson observed: ‘We are all in this together: not only is there a moral obligation on rich countries to reduce urgently their dependence on fossil fuels such as oil and coal, but it is also in the interest of global survival that rich countries share renewable energy technology 1 Mary Robinson and Tessa Robinson, Everybody Matters: My Life Giving Voice (New York: Walker & Company, 2012). 2 Ibid., 297. 3 Ibid. 4 Ibid., 297–98. 5 Ibid., 298. 6 Ibid., 300.

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with poor countries, and support them in adapting to become more resilient to weather shocks.’7 Robinson reflected upon the key questions that the Foundation considered at its establishment: ‘We constantly interrogate ourselves as to whether we are truly looking at climate change from the perspective of the poorest, bringing out the justice elements and seeking solutions based on equity and the right to development.’8 She observed that ‘development is not possible without energy, but in the twenty-first century it has to be clean, affordable, and sustainable energy’.9 Against the theoretical background of climate integrity,10 this chapter considers the work of Mary Robinson and her Foundation in respect of climate justice. In particular, it considers the efforts of the former Irish President to frame climate change as a matter of development and human rights. This chapter suggests that Robinson plays a key role in supporting climate integrity – by demanding that the international climate talks fulfil their goals and objectives (consistencyintegrity); by establishing internal arrangements to support its decisions (coherence-integrity); and reinforcing the wider legal, social, political, and economic environment (context-integrity). Articulating her approach, Mary Robinson has commented: We need to change the debate on climate change: to move beyond its construct as a scientific or environmental problem and to realize that it is in essence an issue of development and of rights – an issue of importance to people now and in the future – a phenomenon that will shape our societies in the coming years and decades. For too long climate change has been left to scientists – and they to their credit have given us the evidence we need that climate change is happening and that it is caused by human activity. Climate change is a problem caused by people, with impacts on people, and must be solved by people. The impacts are as much social as physical, and the solutions must be solved by people.11

The Mary Robinson Foundation – Climate Justice has pursued a number of research themes – including access to sustainable energy; equity and climate justice; food security and nutrition; and women’s leadership on gender and climate change. In September 2013, Mary Robinson played a key role in bringing together a diverse group of advocates, activists, scholars and elders to write a Declaration on Climate Justice.12 The preamble cites the Universal Declaration of Human Rights – ‘All human beings are born free and equal in dignity and rights’.13 The Declaration on Climate Justice enunciated the vision: As a diverse group of concerned world citizens and advocates, we stand in defence of a global climate system that is safe for all of humanity. We demand a world where our children and future generations are assured of fair and just opportunities for social stability, employment, a healthy planet and prosperity. We are united in the need for an urgent response to the climate crisis – a response informed by the current impacts of climate change and the science that points to the possibility of a global temperature increase of 4°C by the end of this century. The economic and 7 Ibid., 300–301. 8 Ibid., 301. 9 Ibid. 10 See Breakey and Cadman, Chapter 2 this volume. 11 Mary Robinson, ‘Social and Legal Aspects of Climate Change’, Journal of Human Rights and the Environment 5 (2014): 15–17. 12 Mary Robinson Foundation – Climate Justice and the World Resources Institute, ‘Declaration on Climate Justice, the High Level Advisory Committee to the Climate Justice Dialogue’ (23 September 2013). 13 Ibid.

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social costs of climate impacts on people, their rights, their homes, their food security and the ecosystems on which they depend cannot be ignored any longer. Nor can we overlook the injustice faced by the poorest and most vulnerable who bear a disproportionate burden from the impacts of climate change.14

The Declaration on Climate Justice was supported by members of the High Level Advisory Committee to the Climate Justice Dialogue, an initiative of the Mary Robinson Foundation – Climate Justice and the World Resources Institute. The advisory committee included Professor Henry Shue – who has undertaken much philosophical work on climate justice.15 The Declaration on Climate Justice observed that ‘a greater imagination of the possible is vital to achieve a just and sustainable world’.16 The Declaration on Climate Justice articulated five priority pathways to achieve climate justice – ‘giving voice’; ‘a new way to grow’; ‘investing in the future’; ‘accountability and governance’; and the ‘rule of law’. This chapter focuses in particular upon these themes in respect of climate justice, ethics and integrity in the Declaration on Climate Justice, and how they have helped inform the discussions for the international climate talks in Paris. First, it considers Robinson’s humanistic vision for inclusive decision-making in respect of climate politics. Second, it examines the focus of the Foundation upon intellectual property, access to clean technologies and the development of a low-carbon economy. Third, this chapter investiagtes the support of Robinson for fossil fuel divestment. Fourth, this chapter examines Robinson’s work on climate justice and ethics. This chapter explores the Human Rights Council’s resolution on climate change and human rights. Fifth, this chapter looks at the efforts to develop an international framework for climate law. It examines the work of Robinson as a United Nations Special Envoy on Climate Change – particularly considering her advocacy at the United Nations Climate Summit 2014, and for a strong international climate deal in Paris in 2015. Giving Voice First, the Declaration on Climate Justice highlights the importance of ‘Giving Voice’.17 The statement’s vision ‘puts people at the centre and delivers results for the climate, for human rights, and for development’.18 The statement emphasizes the need for inclusive and democratic decisionmaking in respect of climate politics: ‘The world cannot respond adequately to climate change unless people and communities are at the centre of decision-making at all levels – local, national and international.’19 The Declaration on Climate Justice observes: ‘By sharing their knowledge, communities can take the lead in shaping effective solutions.’20 The Declaration on Climate Justice insists: ‘We will only succeed if we give voice to those most affected, listen to their solutions, and empower them to act.’21 In terms of climate integrity, the Declaration on Climate Justice highlights 14 Ibid. 15 Henry Shue, Climate Justice: Vulnerability and Protection (Oxford: Oxford University Press, 2014). 16 Mary Robinson Foundation – Climate Justice and the World Resources Institute, ‘Declaration on Climate Justice, the High Level Advisory Committee to the Climate Justice Dialogue’. 17 Ibid. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid.

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how governance arrangements – including transparency, inclusiveness and participation – play a role in the procedural justice of climate change negotiations within the United Nations Framework Convention on Climate Change 1992. After her experience of witnessing the impact of climate change upon farming communities in Africa, Mary Robinson has shown a particular dedicated interest in the impact of climate change upon agriculture, food security and nutrition. On the 15–16 April 2013, the Mary Robinson Foundation – Climate Justice hosted a conference on Hunger – Nutrition – Climate Justice at Dublin Castle.22 The conference was designed to emphasize ‘the voices of those most affected by climate change in developing countries.’23 The Irish Minister for Foreign Affairs, Eamon Gilmore, and Mary Robinson commented: By affording local practitioners, farmers’ organisation representatives and vulnerable households the opportunity to tell their stories to key international policymakers, the conference will take an important step in enabling these voices to influence new international development strategies; while also ensuring that the linkages between hunger, nutrition and climate justice are reflected in future policy decisions.24

In terms of the format of the event, 100 developing country delegates shared their community’s experiences with a further 200 political representatives, policy-makers and delegates from civil society, business, advocacy groups and research institutions. The report stressed: ‘It is essential that these policy processes be firmly rooted in the reality of people’s lives and in objective evidence of what has worked and what has not.’25 The conference report highlights the main themes and outcomes of the event.26 The report observed that there were significant development challenges in respect of global poverty, hunger and nutrition. The conference report noted that climate change further complicated matters of food security: The world’s population will reach 9 billion by 2050. To feed this population, investment in agricultural production in developing countries will have to increase by about 60% to meet demand if current patterns and levels of consumption in the ‘rich’ parts of the world continue to expand, and food wastage at farm and household level is not addressed. Climate change compounds the crisis: it makes natural disasters more frequent and intense, water more scarce and difficult to access, and increases in productivity even harder to achieve. The implications for people who are poor and already food-insecure and malnourished are immense.27

22 Mary Robinson Foundation – Climate Justice, ‘Hunger – Nutrition – Climate Justice’, http://www. mrfcj.org/our-work/food-and-nutrition-security/hunger-nutrition-climate-justice-2013.html (accessed 1 May 2015). 23 ‘A New Dialogue – Putting People at the Heart of Global Development’ (paper presented at the Hunger, Nutrition, Climate Justice, Dublin, 2013): 6–8. 24 Eamon Gilmore and Mary Robinson, ‘Welcome from Eamon Gilmore and Mary Robinson’, in Hunger – Nutrition – Climate Justice: A New Dialogue: Putting People at the Heart of Global Development (Dublin, 2013): 4–5. 25 Mary Robinson Foundation – Climate Justice, ‘A New Dialogue – Putting People at the Heart of Global Development’, 6–8. 26 ‘Conference Report: Hunger – Nutrition – Climate Justice’ (Mary Robinson Foundation, 2013). 27 Ibid.

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The Mary Robinson Foundation – Climate Justice stressed: ‘It is now more critical than ever to coherently address the linked challenges of global hunger, nutrition and climate change.’28 Mary Robinson summarized the main messages and outcomes of the meeting.29 She observed: ‘The first key message I take from this conference is that we need to do more of this … getting grassroots practitioners, the people with experience and who live with the problems we are all trying to solve, together with the policy-makers with responsibility at national and international level.’30 Robinson commented: ‘Esther Jabesi from Malawi said – “you have to listen to me because I have experience – what I know isn’t written in your papers!”’31 Citing examples from Ethiopia, Malawi, Lesotho and Senegal, Robinson maintained that ‘local knowledge has to be the foundation on which research and solutions are built’.32 She stressed: ‘This makes the case for putting people at the centre – because they know what they need and want.’33 Robinson continued: ‘I think we can conclude that we have shown a people centred approach to be effective.’34 She commented: ‘We need to bring more farmers, pastoralists, fisherfolk and women to the table to negotiate the post-2015 development agenda – this conference has shown this can be done and that given the opportunity they are articulate and convincing.’35 In particular, the Mary Robinson Foundation – Climate Justice has sought to address the exclusion of women from policy-making in respect of climate law and justice, observing: Historically climate policy has not addressed the differing ways in which climate change affects men and women. The Foundation is working to contribute to the development of gender-informed climate policy. At the international level this is policy which sets out commitments to address the gender dimensions of climate change and which provides guidance on how best to do this. The Foundation aims to strengthen references to gender and gender equality and women’s leadership in international policy in order to facilitate more gender responsive action on the ground.36

With the support of the Rockefeller Foundation, the Foundation established the Women’s Leadership on Climate Justice Network. The Foundation facilitated the idea of a Troika of Women Leaders on Gender and Climate Change (the three female presidents of COP15, 16 and 17). This group has expanded to a Troika + of over 50 women climate leaders. The Foundation aims to ‘strengthen references to gender equality and women’s leadership in international climate policy in order to facilitate more action on the ground’.37 The Foundation has been concerned that there has been a failure to include gender issues in climate discussions:

28 Ibid. 29 ‘Hunger – Nutrition – Climate Justice: Conference Key Messages’, in Hunger – Nutrition – Climate Justice (Dublin, 2013). 30 Ibid. 31 Ibid. 32 Ibid. 33 Ibid. 34 Ibid. 35 Ibid. 36 ‘Women’s Leadership on Gender and Climate Change’, http://www.mrfcj.org/womens-leadership/ (accessed 1 May 2015). 37 Ibid.

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Historically climate policy has been gender blind and has not addressed the differing ways in which climate change affects men and women … While the UNFCCC decision texts are becoming gender-aware, there is still more that needs to be done. Some aspects of the climate negotiations, particularly in the area of mitigation, are still gender blind. In addition, it is crucial that the references to gender translate into meaningful action on the ground, from the national to the local level.38

This project is reminiscent of the work of Professor Hilary Charlesworth and Professor Christine Chinkin on international law and feminism.39 In its context statement, the Mary Robinson Foundation – Climate Justice discusses the relationship between climate change and gender: ‘Given existing gender inequalities and development gaps, climate change ultimately places a greater burden on women.’40 The Foundation contended: ‘Men and women are affected by climate change in different ways, because the societal and cultural roles and responsibilities made on them by families and communities are very different.’41 The Foundation observed that ‘women’s economic contribution, which is central to the development of countries, is also central to tackling climate change. Women are powerful agents of change and are taking action at global, national and community levels’.42 The Foundation maintained: ‘The role of women in the institutions, mechanisms, funds and processes that address and govern the impacts of climate change is critical to ensuring an equitable response.’43 On the 23 September 2014, in New York Climate Week, Mary Robinson participated in a thematic session on gender and climate change entitled, ‘Voices from the Frontline’.44 The panel for the event included three women – Christina Ora, Alina Saba and Mary Robinson. Robinson emphasized the need for women to be included in decision-making in respect of climate change: Women are the ones solving problems in their communities, women have an understanding of what’s happening but they are not represented around the table. If we take away the barriers to women’s participation we would combat climate change more quickly.45

Robinson commented: ‘The call for climate justice has resounded in New York and around the world over these past few days.’46 She hoped ‘to amplify these voices and make sure they are heard in this Summit of world leaders’.47 Robinson insisted: ‘We must link human rights, development and climate change issues.’48 In 2015, Robinson participated in a summit in Santiago, Chile entitled, ‘Women and Power: Building a Different World’.49 The event was co-hosted by President Michelle Bachelet, and the 38 Ibid. 39 The Boundaries of International Law (Manchester: Manchester University Press, 2000); ‘The New United Nations: ‘Gender Architecture’: A Room with a View?’, in Max Planck Yearbook of United Nations Law, ed. Armin von Bogdandy, Anne Peters, and Radiger Wolfrum (Boston: Brill, 2013). 40 ‘Women’s Leadership on Gender and Climate Change’. 41 Ibid. 42 Ibid. 43 Ibid. 44 ‘Perspective on Women on Climate Change Carried into Climate Summit’ (24 September 2014). 45 Ibid. 46 Ibid. 47 Ibid. 48 Ibid. 49 ‘Women Must Be at the Table to Achieve Climate Justice’ (28 February 2015).

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Executive Director of UN Women, Phumzile Mlambo-Ngcuka. International women leaders signed a call to action entitled, ‘Women: Leaders: Time to Step It Up for Gender Equality’. The call to action reinforced the need for participation of women in decision-making processes related to climate change. The statement noted that ‘women and men must share responsibility for determining their futures, and in building peaceful, climate-resilient communities’.50 Signing the Call to Action, Mary Robinson emphasized that human rights are women’s rights: ‘All of us must work to ensure that the principle of gender equality is integrated into international efforts to address climate change and sustainable development in 2015 and beyond’.51 Phumzile Mlambo-Ngcuka, Executive Director of UN Women and a member of the Troika+ of Women Leaders on Gender and Climate Change, stressed that ‘both climate justice and gender justice are a precondition for the success of the development agenda and humanity’s survival’.52 The Paris Climate Talks will consider a number of items on climate change and gender.53 In the preamble, there has been discussion about the need to ensure: that all actions to address climate change and all the processes established under this agreement should ensure [a gender-responsive approach] [gender equality and intergenerational equity], take into account [environmental integrity] [the protection of the integrity of Mother Earth], and respect human rights, the right to development and the rights of [youth and] indigenous peoples [as well as the just transition of the workforce and the creation of decent work, in accordance with nationally defined development priorities and strategies].54

There are a number of references to a ‘gender-sensitive’ approach, ‘a gender-responsive approach’ and ‘gender equality’ in the draft text, although such references are heavily bracketed as text.55 In this context, the Mary Robinson Foundation – Climate Justice will play a key role as a nongovernment actor, promoting climate integrity in terms of the procedural justice of the climate change negotiations within the United Nations Framework Convention on Climate Change 1992. Mary Robinson and her Foundation have played a particularly significant function in promoting transparency, accountability and inclusiveness in respect of the international climate talks. A New Way to Grow Second, the Declaration on Climate Justice called for ‘a new way to grow’.56 The Declaration on Climate Justice highlighted the problem of the carbon budget: ‘There is a global limit to the carbon we can emit while maintaining a safe climate and it is essential that equitable ways to limit these emissions are achieved’.57 The Resolution stressed: ‘Transforming our economic 50 Ibid. 51 Ibid. 52 Ibid. 53 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Report of the Ad Hoc Working Group on the Durban Platform for Enhanced Action on the Second Part of Its First Session (Geneva: UNFCCC, 2013). 54 Ibid. 55 Ibid. 56 Mary Robinson Foundation – Climate Justice and the World Resources Institute, ‘Declaration on Climate Justice, the High Level Advisory Committee to the Climate Justice Dialogue’. 57 Ibid.

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system to one based on low-carbon production and consumption can create inclusive sustainable development and reduce inequality’.58 The Declaration on Climate Justice observed: ‘As a global community, we must innovate now to enable us to leave the majority of the remaining fossil fuel reserves in the ground – driving our transition to a climate resilient future.’59 In this context, the Declaration on Climate Justice underlines the need to create green jobs and a green economy: ‘To achieve a just transition, it is crucial that we invest in social protection, enhance worker’s skills for redeployment in a low-carbon economy and promote access to sustainable development for all.’60 The Declaration on Climate Justice emphasizes the need for technology transfer: ‘Access to sustainable energy for the poorest is fundamental to making this transition fair and to achieving the right to development.’61 The Declaration on Climate Justice makes a strong linkage between climate change and access to clean technologies: ‘Climate justice also means free worldwide access to breakthrough technologies for the transition to sustainability, for example, efficient organic solar panels and new chemical energy storage schemes.’62 Mary Robinson disavowed technological determinism in the debates over climate action. She contends: ‘Ultimately, achieving sustainability and a low-carbon economy will not only depend on technological innovation, but will require far-ranging social and political innovation.’63 She noted: ‘Let us not forget technology does not have the ability to eliminate poverty, respect human rights, stop climate change and build a sustainable society – people do.’64 The Mary Robinson Foundation – Climate Justice has sought to address energy poverty and promote access to clean technologies: ‘It is estimated that approximately 1.3 billion people worldwide have no access to electricity.’65 The Foundation’s ‘work in this area started in 2012 and has a focus on access to energy for poor and vulnerable households and believes it is necessary to identify specific measures to reach those least able to pay for energy and low-carbon technologies.’66 Mary Robinson has spoken about her concerns in respect of the need for access to safe, sustainable forms of energy: 1.3 billion people – one in five globally – lack electricity to light their homes or conduct business. Twice that number – nearly 40% of the world’s population – rely on wood, coal, charcoal, or animal waste to cook their food and suffer severe health risks. Estimates published by the Lancet last year put the number of global deaths from indoor air pollution from cooking at 4 million, double previous estimates. These figures are unacceptable and must cause us to redouble our efforts to bring safe, sustainable forms of energy to those who currently have none.67

58 Ibid. 59 Ibid. 60 Ibid. 61 Ibid. 62 Ibid. 63 Mary Robinson, ‘Foreword’, in Human Rights and Climate Change ed. Stephen Humphreys (Cambridge: Cambridge University Press, 2010): xx. 64 Ibid. 65 Ibid. 66 ‘Access to Sustainable Energy’, http://www.mrfcj.org/access-to-sustainable-energy/ (accessed 1 May 2015). 67 ‘37 Years from Now’, The Huffington Post, 26 March 2013.

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Mary Robinson has worked with the Global Alliance for Clean Cookstoves’ Leadership Council.68 Robinson has said: ‘On the opportunities side, we need new thinking about breakthrough technologies that could benefit poor countries and peoples, and help them leap frog into renewable energy.’69 She stressed: ‘That will require new approaches to intellectual properties.’70 Arguably, this dimension of the agenda of the Mary Robinson Foundation for Climate Justice is underdeveloped. There has been a larger debate about intellectual property, clean technologies and climate change.71 There has been discussion as to whether ‘Patents for Humanity’ should be fasttracked or given special incentives.72 Thus far, the International Climate talks have resulted in the establishment of a Technology Mechanism – the Climate Technology Centre and Network.73 The Climate Technology Centre and Network is designed to facilitate collaboration on the research, development and diffusion of clean technologies. The United Nations Environment Programme is managing the Centre, which is now operational, and working at its hub in Copenhagen, and in a variety of nodes of Climate Innovation Centres throughout the world. In addition to the Climate Technology Centre and Network, the Green Climate Fund (GCF) has been developed to provide financial support to assist developing countries engage in climate change mitigation and adaptation.74 There remains a lively international debate about access to clean technologies. Professor Carlos Correa has been concerned about the burden of intellectual property rights. He recognizes: ‘Expanding low-carbon energy systems in developing countries requires that relevant technologies be diffused in a timely fashion.’75 Correa was concerned: ‘When rights holders are reluctant to transfer privately held technologies – often because they are afraid of empowering potential competitors – an incentive system fails to ensure accessibility.’76 He made three recommendations. Correa said: ‘In order to reduce the burdens on developing countries that the global intellectual property system creates, governments from both developed and developing countries could promote innovation outside that system – in effect, they could support the development of technologies as a public good.’77 He insisted: ‘Governments could also reduce patent proliferation by applying more

68 ‘Global Alliance for Clean Cookstoves’, http://cleancookstoves.org/about/our-team/ (accessed 1 May 2015). 69 ‘Achieving Justice and Human Rights in an Era of Climate Disruption’, in International Bar Association (Tokyo: Mary Robinson Foundation 2014). 70 Ibid. 71 See, Eric Lane, Clean Tech Intellectual Property: Eco-Marks, Green Patents and Green Innovation (Oxford: Oxford University Press, 2011); Peter Menell and Sarah Tran, Intellectual Property, Innovation, and the Environment (Cheltenham, UK and Northampton, MA: Edward Elgar, 2014). 72 Matthew Rimmer, ‘Patents for Humanity’, The World Intellectual Property Organization WIPO Journal 3, no. 2 (2012); ‘Intellectual Property and Global Warming: Fossil Fuels and Climate Justice’ in The Sage Handbook of Intellectual Property, ed. Matthew David and Debora Halbert (London: Sage Publications, 2014). 73 Matthew Rimmer, Intellectual Property and Climate Change: Inventing Clean Technologies (Cheltenham, UK and Northampton, MA: Edward Elgar, 2011); ‘Intellectual Property and Global Warming: Fossil Fuels and Climate Justice’. 74 Alexander Zahar, Jacqueline Peel, and Lee Godden, Australian Climate Law in Global Context (Cambridge: Cambridge University Press, 2013). 75 Carlos Correa, ‘Climate Mitigation and Intellectual Property in Tension: The Burden of Intellectual Property Rights’, Bulletin of the Atomic Scientists, 18 February 2015. 76 Ibid. 77 Ibid.

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rigorous standards to the assessment of patent applications.’78 Moreover, Correa recommended that governments could grant compulsory licences – ‘that is, they could authorize third parties to use a patented technology provided they pay remuneration to the rights holder’.79 Professor Frederick Abbott made comparisons between access to medicines, and access to clean technologies.80 Ahmed Abdel Latif has highlighted uncertainty about the impact of intellectual property upon clean technologies and climate change.81 The Paris Climate Talks will consider a number of issues related to intellectual property, technology transfer and finance.82 Draft Article 56.3 lays down a number of options. The first option suggests a number of possibilities to facilitate technology transfer. Item A suggests that developed countries ‘provide financial resources to address barriers caused by intellectual property rights (IPRs) and facilitate access to and the deployment of technology, including inter alia, by utilizing the Financial Mechanism and/or the establishment of a funding window under the Green Climate Fund (GCF)/ the operating entities of the Financial Mechanism’.83 Item B calls for ‘An international mechanism on IPRs to be established to facilitate access to and the deployment of technology to [developing country Parties]’.84 Item C calls for other arrangements to be established to address intellectual property rights – such as ‘collaborative research and development, shareware, commitments related to humanitarian or preferential licensing, fully paid-up or joint licensing schemes, preferential rates and patent pools’.85 Item D suggests that ‘funds from the Green Climate Fund will be utilized to meet the full costs of intellectual property rights (IPRs) of environmentally sound technologies and know-how and such technologies will be provided to developing country Parties free of cost in order to enhance their actions to address climate change and its adverse impacts’.86 The second option is that ‘Parties recognize that IPRs create an enabling environment for the promotion of technology innovation in environmentally sound technologies’.87 The third option favoured by developed countries is that ‘IPRs are not to be addressed in this agreement’.88 The fourth option is for ‘Developed country Parties to make available Intellectual Property (IP) through multilateral institutions as public good, through purchase of IP’.89 There has, though, been little consensus on text related to intellectual property, clean technologies and climate change in past international climate talks. It will be difficult to reach a compromise at the Paris Climate Talks on this issue. In this context, Mary Robinson and her Foundation need to play a more assertive role in the debate over access to renewable energy and low-carbon technologies. There should be ‘consistency-integrity’, ‘coherence-integrity’ and 78 Ibid. 79 Ibid. 80 Frederick Abbott, ‘Climate Mitigation and Intellectual Property in Tension: A Problem, but Not without Solutions’, ibid. 19 February 2015. 81 Ahmed Abdel Latif, ‘Climate Mitigation and Intellectual Property in Tension: Disputed Impact, but Not to Be Ignored#.Voq5guhp36a.Twitter’, ibid. 2015. 82 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Report of the Ad Hoc Working Group on the Durban Platform for Enhanced Action on the Second Part of Its First Session. 83 Ibid. 84 Ibid. 85 Ibid. 86 Ibid. 87 Ibid. 88 Ibid. 89 Ibid.

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‘context-integrity’ in respect of the international architecture on intellectual property, technology transfer and access to clean technologies. Above and beyond questions about access to clean technologies, the Mary Robinson Foundation – Climate Justice does not address larger questions about the economics of climate change policy, as directly as it might. Robinson and the Foundation need to engage with the economic risks of climate change. The Risky Business Project – chaired by Mike Bloomberg – has considered the economic costs of climate change.90 The climate risk assessment for the United States has highlighted impacts – including ‘damage to coastal property and infrastructure from rising sea levels and increased storm surge, climate-driven changes in agricultural production and energy demand, and the impact of higher temperatures on labor productivity and public health’.91 Moreover, Robinson and the Foundation need to engage more with the debate over carbon pricing. The economist William Nordhaus has stressed: ‘To slow climate change, the incentive must be for everyone – millions of firms and billions of people spending trillions of dollars – to increasingly replace their current fossil-fuel-driven consumption with local carbon activities.’92 Nordhaus had stressed that ‘the most effective incentive is a high price for carbon’.93 He emphasized that one of the benefits of carbon pricing is that ‘it will give market incentives for inventors, innovators, and investment bankers to invent, fund, develop, and introduce new lowcarbon products and processes’.94 Nordhaus maintained that humans can take climate action ‘at relatively low cost if people accept the realistic threat of global warming, put in place an economic mechanism that penalizes carbon emissions, and take vigorous efforts to develop lowcarbon technologies’.95 Similarly, Professor Andrew Guzman makes the point in his book Overheated that there is a need to address the human costs of climate change. He concludes, maintaining: ‘We must raise the price of carbon sufficiently to keep the planet from overheating.’96 Investing in the Future The third theme of the Declaration on Climate Justice is ‘Investing in the Future’.97 There is an emphasis upon fossil fuel divestment in this section: A new investment model is required to deal with the risks posed by climate change – now and in the future, so that intergenerational equity can be achieved. Policy certainty sends signals to invest in the right things. By avoiding investment in high-carbon assets that become obsolete, and prioritizing sustainable alternatives, we create a new investment model that builds capacity and resilience while lowering emissions. Citizens are entitled to have a say in how their savings, such 90 Kate Gordon (Lead Author), ‘Risky Business: The Economic Risks of Climate Change in the United States, a Climate Risk Assessment for the United States’ (2014). 91 Ibid. 92 W.D. Nordhaus, ‘Global Public Goods and the Problem of Global Warming’ (Toulouse: Annual Lecture at the Institute d’Economie Industrielle, 1999): 6. 93 Ibid. 94 Ibid., 7. 95 Ibid., 326. 96 Andrew Guzman, Overheated: The Human Cost of Climate Change (Oxford: Oxford University Press, 2013): 230. 97 ‘Declaration on Climate Justice, the High Level Advisory Committee to the Climate Justice Dialogue’.

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as pensions, are invested to achieve the climate future they want. It is critical that companies fulfil their social compact to invest in ways that benefit communities and the environment.98

There is also an indication of support here for market mechanisms – such as the use of carbon pricing: ‘Political leaders have to provide clear signals to business and investors that an equitable low-carbon economic future is the only sustainable option.’99 There has been a prominent popular movement led by Bill McKibben and 350.Org, calling for fossil fuel divestment by schools and universities.100 Inspiration was derived from the anti-apartheid movement, with its divestment campaign led by Bob Massie.101 A number of educational institutions – including Stanford University, Glasgow University, the Victoria University of Wellington and the Australian National University – have adopted ethical investment policies, involving the removal of fossil fuel investments. The fossil fuel divestment movement has broadened to include a range of other institutions. A number of cities – such as Seattle, Portland, San Francisco and Dunedin – have adopted fossil fuel divestment policies. Religious institutions have been attracted to ethical investment policies. A number of charities and philanthropies – including the Rockefeller Foundation – have embraced fossil fuel divestment. Superannuation funds have also started to engage with the issue. There has been much debate over whether sovereign wealth funds should engage in fossil fuel divestment. Some commentators such as Naomi Klein have called for reinvestment in renewable energy and public works – such as housing, infrastructure and green transportation.102 There has been an increasing amount of scholarship upon the symbolic and the practical impact of the fossil fuel divestment movement. Ben Caldecott and his group at the University of Oxford have undertaken extensive work upon stranded assets.103 The group contend that ‘Divestment campaigns will probably be at their most effective in triggering a process of stigmatisation of fossil fuel companies’.104 In a September 2013 interview with Democracy Now, Mary Robinson discussed her support for fossil fuel divestment as part of her climate justice agenda.105 Mary Robinson has drawn parallels between Big Tobacco and the climate denial movement. She observed that the fossil fuel industry was supporting climate denial: ‘It reminds me a little bit of the tobacco problem, and it’s somewhat similar because it’s causing denial of an issue that we should be taking so seriously and working together on.’106 She hoped: ‘All countries in the world, large and small, should be unequivocal in working to have a transformative leadership to a low-carbon economy.’107 Tobacco divestment has been an effective strategy in questioning 98 Ibid. 99 Ibid. 100 Bill McKibben, Oil and Honey: The Education of an Unlikely Activist (Melbourne: Black Inc. Books, 2013). 101 Bob Massie, A Song in the Night: A Memoir of Resilience (New York: Nan A. Talese: Doubleday, 2012). 102 Naomi Klein, This Changes Everything: Capitalism Vs. The Climate (New York: Simon and Schuster, 2014). 103 Atif Ansar, Ben Caldecott, and James Tilbury, Stranded Assets and the Fossil Fuel Divestment Campaign: What Does Divestment Mean for the Valuation of Fossil Fuel Assets? (Oxford: Oxford University, 2014). 104 Ibid., 74. 105 Amy Goodman, ‘Climate Change Is Now: Former Irish President Mary Robinson and Marshall Islands’ Tony De Brum’, Democracy Now!, 22 September 2014. 106 Ibid. 107 Ibid.

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social respectability of the tobacco industry. Similar tactics have been deployed in respect of fossil fuel divestment. Mary Robinson was impressed by the youth-led movement at colleges and universities: ‘We can no longer invest in companies that are part of the problem of the climate shocks that we’re suffering from.’108 She openly encouraged students and colleges to be part of the movement: There’s an injustice in continuing to invest in fossil fuel companies that are part of the problem. My foundation has joined with the World Resources Institute in a declaration on climate justice. We say unequivocally what the International Energy Agency says and the Carbon Tracker calculation of the carbon budget, that two-thirds of the fossil fuel reserves known now must stay in the ground. And there’s no point in going into the Arctic and looking for new fossil reserves and disturbing that wonderful environment.109

Robinson maintained: ‘We need young people and women and others to stand up now against the way in which the corporate sector that is engaged in fossil fuel is buying bad science, is spreading wrong information and trying to prevent us from addressing what we really need to address, which is transformational leadership to low-carbon growth.’110 In a February 2014 opinion piece in The Guardian, Mary Robinson provides support for fossil fuel divestment.111 She contends that the social movement could use the policy of divestment to promote climate justice: The divestment campaign– which originated in the United States and is now making its way across the Atlantic – is one shining example of what is needed to curb greenhouse gas emissions. Transforming our economic system to one based on low-carbon production and consumption can create inclusive sustainable development and reduce inequality. To achieve a just transition to a low-carbon economy, it is crucial that we invest in social protection, enhance workers’ skills for redeployment in a low-carbon economy, and promote access to sustainable development for all.112

Robinson commented: ‘The premise of the divestment campaign is simple: non-profit organisations must move their investments away from fossil fuels, reducing the power and influence this industry has on society.’113 She highlighted the expansion of the campaign to cover a wide range of institutions: ‘Initially focusing on universities – in the UK alone, their endowment funds have invested £5bn in coal, oil and gas – the campaign’s message has since had an influence on other organizations, such as the Church of England, which this month said it would pull its investment in companies that didn’t do enough to fight climate change.’114 Robinson applauded the role of young people in the fossil fuel divestment movement: ‘As with the anti-apartheid campaign in the 1980s, students today are taking action that can determine their futures – and the futures of generations to come – for the better.’115 She considered this social movement to be of assistance in addressing matters of inter-generational justice and equity: ‘This 108 Ibid. 109 Ibid. 110 Ibid. 111 ‘Carbon Divestment Shining Example’, The Guardian (UK), 18 February 2014. 112 Ibid. 113 Ibid. 114 Ibid. 115 Ibid.

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is how inter-generational equity can be achieved: promoting a new investment model that responds to the risks posed by climate change.’116 Robinson commented: ‘By avoiding investment in highcarbon assets that become obsolete, and by prioritising sustainable alternatives, we build capacity and resilience, particularly for more vulnerable people – while lowering carbon emissions.’117 She was encouraged that a popular movement for climate justice will encourage political action: ‘National leaders have an important role to play, and with their electorate behind them, they will be far more willing to act.’118 Robinson is alarmed about the carbon budget: ‘Global investment in clean technologies is now at about $300bn (£180bn) a year, but according to the International Energy Agency, this would need to reach $1tn by 2030 in order to keep within a 2C warmer world, the threshold above which climate change would become catastrophic.’119 She highlighted the need to get rid of fossil fuel subsidies: ‘Meanwhile, the temptation to invest in coal, oil and gas is heightened by countries’ fossil fuel subsidies that, worldwide, amount to $1.9tn a year, according to the International Monetary Fund.’120 She is concerned that such subsidies distort the market, and ‘enable the fossil fuel industry to perpetuate the notion that renewable energy is more expensive’.121 Nonetheless, Robinson observes: ‘Of course, in withdrawing any fossil fuel subsidies, absolute consideration has to be given to accessing energy for the poorest, therefore investment has to be made in sustainable energy alternatives.’122 In response, the Big Oil company – Exxon – has taken umbrage at Mary Robinson’s call for fossil fuel divestment.123 Ken Cohen was indignant that Mary Robinson and others had endorsed fossil fuel divestment as a policy option, complaining that ‘divestment represents a diversion from the real search for technological solutions to managing climate risks that energy companies like ours are pursuing’.124 He argued that fossil fuel divestment would harm development: ‘In the ongoing discussions about how to address the risks of climate change, it is important to recognize how the radical recommendation of the divestment movement – that society stop using fossil fuels altogether – would immediately jeopardize the basic standards of living for billions of people around the world.’125 He maintained that ‘it would preclude the billions more in developing nations who are seeking to reach modern living standards from ever doing so’.126 Ken Cohen denied that clean technologies and renewable energy were capable of replacing fossil fuels.127 This line is similar to the argument of Australian Prime Minister Tony Abbott that ‘coal is good for humanity’.128 Such attacks upon fossil fuel divestment by Exxon Mobil have done little to dissuade international leaders from adopting a positive attitude towards fossil fuel divestment.

116 Ibid. 117 Ibid. 118 Ibid. 119 Ibid. 120 Ibid. 121 Ibid. 122 Ibid. 123 Ken Cohen, ‘Some Thoughts on Divestment’, ExxonMobil Perspectives, 10 October 2014. 124 Ibid. 125 Ibid. 126 Ibid. 127 Ibid. 128 Ibid.

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It is also notable that the Rockefellers have tried to persuade Exxon Mobil to take into account climate risks.129 Notably, the United Nations Secretary-General, Ban Ki-Moon, has commented: ‘I have been urging companies like pension funds or insurance companies to reduce their investments in coal and a fossil-fuel based economy to move to renewable sources of energy’.130 In March 2015, Nick Nuttall, the spokesman for the United Nations Framework Convention on Climate Change (UNFCCC), commented: ‘We support divestment as it sends a signal to companies, especially coal companies, that the age of “burn what you like, when you like” cannot continue.’131 He emphasized: ‘Everything we do is based on science and the science is pretty clear that we need a world with a lot less fossil fuels.’132 Nuttall stressed that the United Nations had lent its support to non-government organizations engaged in fossil fuel divestment: ‘We have lent our own moral authority as the UN to those groups or organisations who are divesting.’133 He concluded: ‘We are saying “we support your aims and ambitions because they are fairly and squarely our ambition”, which is to get a good deal in Paris.’134 In light of the work on climate integrity, the fossil fuel divestment movement plays an important role in terms of ensuring consistency with the goal of de-carbonization. The non-government actors also promote coherence in terms of international climate action. There is also an effort to ensure that there is a larger contextual climate integrity – particularly in terms of social, political and economic systems. Commitment and Accountability Traditionally, there has been a disciplinary disconnection between the disciplines of human rights and climate change. Stephen Humphreys observed in 2010 that ‘the mainstream climate change literature and debate has, until very recently, given little or no attention to human rights concerns’.135 He suggests that there were a number of reasons why practitioners might doubt the wisdom of taking a human rights approach to climate change: the rights at issue are difficult to enforce; extraterritorial responsibility is hard to establish; local accountability is hard to establish; emergency conditions limit the application of human rights law; and rights may conflict. In response to such misgivings, Humphreys contended that ‘human rights law is relevant to climate change for the simple reason that climate change affects and will increasingly impinge upon human rights’.136 The fourth theme in the Declaration on Climate Justice is ‘Commitment and accountability.’137 The Declaration on Climate Justice addresses larger issues about equality, fairness and justice in 129 Suzanne Goldenberg, ‘Keep It in the Ground: Rockefeller Family Tried and Failed to Get Exxonmobil to Accept Climate Change’, The Guardian (Australia), 27 March 2015. 130 United Nations, ‘Ban Ki-Moon Urges More Fossil Fuel Divestment’, UNFCC Newsroom, no. 4 November 2014, http://newsroom.unfccc.int/financial-flows/ban-ki-moon-speaks-in-favour-of-divestment/ (accessed 1 May 2015). 131 Damian Carrington, ‘Climate Change: UN Backs Fossil Fuel Divestment Campaign’, The Guardian (Australia), 15 March 2015. 132 Ibid. 133 Ibid. 134 Ibid. 135 Stephen Humphreys, ‘Introduction’, in Human Rights and Climate Change, ed. Stephen Humphreys (Cambridge: Cambridge University Press, 2010): 2–3. 136 Ibid., 7. 137 ‘Declaration on Climate Justice, the High Level Advisory Committee to the Climate Justice Dialogue’.

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terms of climate governance: ‘Our vision acknowledges the injustices caused by climate change and the responsibility of those who have caused it.’ The Declaration on Climate Justice hoped to ‘build a common future based on justice for those who are most vulnerable to the impacts of climate change and a just transition to a safe and secure society and planet for everyone’. The Declaration on Climate Justice observed: Achieving climate justice requires that broader issues of inequality and weak governance are addressed both within countries and at a global level. Accountability is key. It is imperative that Governments commit to bold action informed by science, and deliver on commitments made in the climate change regime to reduce emissions and provide climate finance, in particular for the most vulnerable countries.138

In terms of its theoretical perspective, the Declaration on Climate Justice draws upon the theoretical work of Henry Shue about climate justice.139 By the same token, the regime could be seen as a means of encouraging consistency in terms of realizing climate justice. The Declaration on Climate Justice also plays an integrative role in terms of bringing together a range of themes in a coherent fashion. The Declaration on Climate Justice also seeks to promote contextual climate integrity, by ensuring that the international climate framework meshes well with the external social, political and economic environment. Mary Robinson was particularly conscious of the impact of climate change upon poor communities, highlighting the impacts of Hurricane Katrina upon New Orleans, and Superstorm Sandy upon New York and the surrounding region. She commented in an interview with Democracy Now!: ‘Climate justice starts with the injustice of the fact that climate shocks are affecting the very poorest already.’140 This has parallels with theories about environmental justice – where environmental harms are unevenly distributed, depending on factors such as class, race and gender. The Human Rights Council adopted a resolution on human rights and climate change in 2014. Mary Robinson commented upon the announcement: Climate change is, I believe, not just an issue of atmospheric science; is also about human rights. The current and future impacts of climate change undermine human rights, including the right to food, to health and water, so I welcome the adoption, by consensus, of a the new resolution A/ HRC/26/L.33 by the Human Rights Council which recognises the need to fully respect human rights when taking climate action.141

Robinson commented that: ‘Climate change is a global problem which urgently needs bold solutions that are fair, and protect and respect the rights of people.’142 She welcomed the resolution: ‘A renewed emphasis on the impacts of climate change by the Human Rights Council is therefore timely, as we face into the negotiation of a new climate agreement under the United Nations Framework Convention on Climate Change in 2015 and the development of the

138 Ibid. 139 Shue, Climate Justice: Vulnerability and Protection. 140 Amy Goodman, ‘Former Irish President, Climate Justice Advocate Mary Robinson Urges Divestment of Fossil Fuel Firms’, Democracy Now!, 23 October 2013. 141 Mary Robinson Foundation – Climate Justice, ‘Statement from Mary Robinson on the Adoption of a New Resolution on Climate Change and Human Rights in the Human Rights Council’ (27 June 2014). 142 Ibid.

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Post-2015 Development Agenda.’143 Robinson called for a discussion about climate change within the framework of human rights and justice: ‘We need to change the debate on climate change – to move beyond its construct as a scientific or environmental problem and to realise that it is in essence an issue of development and of rights.’144 She observed: ‘Taking a climate justice approach to climate change means you respect human rights.’145 She commented: ‘I particularly welcome the Human Rights Council’s reaffirmation that human rights principles and obligations can inform and strengthen policy making on climate change at all levels.’146 The 2014 Human Rights Council statement on Human Rights and Climate Change is worth examining.147 The preamble sought to reaffirm a number of existing international instruments and declarations. The Human Rights Council supported ‘the United Nations Framework Convention on Climate Change and the objectives and principles thereof’ and emphasized ‘that parties should, in all climate change-related actions, fully respect human rights as enunciated in the outcome of the sixteenth session of the Conference of Parties to the Convention’.148 The resolution on Human Rights and Climate Change highlighted matters of development. The resolution also cited the report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights. The Resolution reaffirmed that ‘all human rights are universal, indivisible, interdependent and interrelated’ and ‘that it is the primary responsibility of States to promote and protect human rights’.149 The Resolution discussed the various impacts of climate change upon a range of human rights: Emphasizing that the adverse effects of climate change have a range of implications, both direct and indirect, for the effective enjoyment of human rights, including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination, the right to development and the right to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence.150

The Resolution expressed ‘concern that, while these implications affect individuals and communities around the world, the adverse effects of climate change will be felt most acutely by those segments of the population that are already in vulnerable situations owing to factors such as geography, poverty, gender, age, indigenous or minority status and disability’.151 The resolution of the Human Rights Council also touched upon questions of historical responsibility and climate debt. The Human Rights Council made a number of recommendations on how international organizations, nation-states and stakeholders could help take a human rights-based approach to climate change. A number of scholars have shown great creativity in taking human rights approaches to climate change matters. Anna Grear hopes that the progressive promise of ‘climate justice’ can be fortified

143 Ibid. 144 Ibid. 145 Ibid. 146 Ibid. 147 Human Rights Council, ‘Human Rights and Climate Change’ (United Nations A/HRC/26/L.33/ Rev.1, 25 June 2014). 148 Ibid. 149 Ibid. 150 Ibid. 151 Ibid.

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into a ‘future-facing, adaptive politics of action’.152 Naomi Klein is hopeful that the climate justice movement could become a broader catalyst for positive political change.153 In Green Governance, Burns Weston and David Bollier have argued that the human rights discourse is a useful means of analysing global environmental issues, such as climate change: ‘Framing climate change as a human rights problem helps to empower politically weaker interests with serious substantive and/ or procedural claims in their struggles against the powerful – as could be the case, for example, in seeking recognition of a right to green governance.’154 In Nature’s Trust, Mary Christina Wood is concerned: ‘Far from protecting Nature, agencies now use their authority under environmental law to hospice a dying planet.’155 She promotes an expansive reading of the public trust doctrine to protect human rights through atmospheric trust litigation. In a series of books, David Boyd has made the case for a recognition of a right to a healthy environment under constitutional law. He recognizes, though, that rights-based language will face monumental problems, such as climate change: ‘While constitutional environmental law slowly spreads its wings, the ongoing environmental challenges facing the world – climate change, toxic pollution, resource depletion, and the decline of biological diversity – indicate that we have a long way to go in achieving a sustainable future.’156 It should be noted that not all are enamoured of a human rights approach to questions of climate change. In his book, Justice for Future Generations, Peter Lawrence considers the challenges for a human rights approach to the treatment of future generations in respect of climate change: Does the peculiar nature of climate change harms mean that a human rights approach is unworkable? More specifically, does it matter that the harms involved in climate change are from a range of sources – from individuals to corporations – and secondly, that the harm is of a cumulative nature. Hiskes points out that human rights are dynamic and must be responsive to emergent types of harms, including environmental harms.157

Lawrence contends: ‘The daunting nature of this challenge of allocating responsibility in no way undermines the internal coherence of human rights as a basis of obligations towards future generations.’158 In addition to individual rights, he also goes onto explore notions of collective human rights – particularly notions of the right to development, and sustainable development. He suggests: ‘While the notion of future generations possessing a single collective right is questionable, it is coherent to conceive of particular groups possessing collective rights in the future – in relation

152 Anna Grear, ‘Towards “Climate Justice”?: A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy’, Journal of Human Rights and the Environment 5 (2014): 104. 153 Klein, This Changes Everything: Capitalism Vs. The Climate, 7. 154 Burns Weston and David Bollier, Green Governance, Human Rights, and the Law of the Commons (Cambridge: Cambridge University Press, 2013): 95. 155 Mary Christina Wood, Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge: Cambridge University Press, 2014): 17. 156 David Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver and Toronto: UBC Press, 2012): 290–91. See also The Right to a Healthy Environment: Revitalizing Canada’s Constitution (Vancouver and Toronto: UBC Press, 2012). 157 Peter Lawrence, Justice for Future Generations: Climate Change and International Law (Cheltenham, UK and Northampton, MA: Edward Elgar, 2014): 43. 158 Ibid., 44.

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to, for example, culture and sustainable development – which are threatened by a failure to mitigate climate change now, giving rise to particularly mitigation obligations on current generations.’159 Reflecting upon climate justice, Stephen Humphreys observes: ‘The conundrum with which climate justice faces the law is a problem of degree.’160 He wonders: ‘At what point do we instead “empower” the forgotten claims of the past – and how do we do so?’161 Amongst other things, the Paris Climate Talks are considering a proposal to establish an International Climate Justice Tribunal in order to oversee, control and sanction the fulfilment of and compliance with the obligations of nation-states under this agreement, and the Convention.162 The draft negotiating text also maintains that ‘Parties should ensure in all climate change related actions full respect to all human rights’.163 Moreover, the draft text stresses: ‘Recognizing that all actions on climate change shall significantly contribute to the post 2015 development agenda of the United Nations with a particular focus on human rights, good governance, gender equality and the needs of particularly vulnerable groups.’164 However, such explicit text on climate justice and human rights will no doubt be hotly contested in the international climate talks in Paris. Rule of Law Fifth, the Declaration on Climate Justice focuses upon the importance of the rule of law.165 The Declaration on Climate Justice recognizes that ‘climate change will exacerbate the vulnerability of urban and rural communities already suffering from unequal protection from the law’.166 The Declaration on Climate Justice observed: ‘In the absence of adequate climate action there will be increased litigation by communities, companies and countries.’167 The Declaration on Climate Justice commented: ‘International and national legal processes and systems will need to evolve and be used more imaginatively to ensure accountability and justice.’168 The statement insisted that ‘strong legal frameworks can provide certainty to ensure transparency, longevity, credibility and effective enforcement of climate and related policies’.169 Such a regime is particularly important in terms of achieving climate integrity – particularly in terms of consistency, coherence and context. Thinking about the Declaration on Climate Justice, Mary Robinson reflected upon the need to consider the role of law in achieving climate justice.170 She has emphasized that ‘an international legally binding climate agreement is an important step in protecting the most vulnerable by reducing greenhouse gas emissions in advanced economies and avoiding dangerous climate 159 Ibid., 46. 160 Stephen Humphreys, ‘Climate Justice: The Claim of the Past’, Journal of Human Rights and the Environment 5 (2014): 148. 161 Ibid. 162 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Report of the Ad Hoc Working Group on the Durban Platform for Enhanced Action on the Second Part of Its First Session. 163 Ibid. 164 Ibid. 165 Mary Robinson Foundation – Climate Justice and the World Resources Institute, ‘Declaration on Climate Justice, the High Level Advisory Committee to the Climate Justice Dialogue’. 166 Ibid. 167 Ibid. 168 Ibid. 169 Ibid. 170 Robinson, ‘Social and Legal Aspects of Climate Change’, 15–17.

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change’.171 Robinson observed: ‘While we work towards a new climate agreement we need to look in parallel at the role other legal instruments can play – from the fields of human rights and refugee law to trade and corporate law.’172 She commented that ‘climate change is not just a climate issue; it is a development issue, an economic issue, a rights issue, and a legal issue’.173 In late 2014, the International Bar Association published its substantial 300-page report, Achieving Justice and Human Rights in an Era of Climate Disruption.174 In the foreword, Robinson stressed: ‘The significance of this report lies in its legal treatment of the impacts of climate change on human rights and the proposal of practical ways of integrating human rights into climate policies and actions.’175 She stressed: ‘Through this Report the legal community embraces climate justice, elucidates the links between climate change and human rights and makes clear recommendations on ways to secure justice for those affected by climate impacts.’176 In her speech to the International Bar Association, Mary Robinson lamented that the legal profession had been slow to respond to the challenges and opportunities associated with climate change: ‘As I lawyer myself, I have felt that the legal profession worldwide has been behind the curve on the negative impacts of climate change.’177 Robinson told the audience that climate change already ‘poses huge challenges to human rights, to food and health in vulnerable countries, and we face the prospect of millions of climate displaced people who are not recognized as refugees and for whom there is as yet no international convention’.178 She wondered what implications climate change would have for the concept of the rule of law. Robinson called upon the legal profession to support climate justice: ‘My challenge to you this time is to deliver the recommendations in the report and be actors in the pursuit of climate justice.’179 She insisted: ‘You can be and must be a constituency of demand that our political leaders can be informed and supported by to take the urgent action needed on all fronts.’180 In September 2014, Mary Robinson attended the New York Climate Week, and key events such as the People’s Climate March, and the United Nations Climate Summit 2014. Along with other Elders such as Gro Harlem Brundtland, Mary Robinson attended the New York People’s Climate March. She spoke about the enriching experience of attending the People’s Climate March.181 Robinson was particularly moved by how the March transformed climate justice into a popular movement: ‘Joining the People’s Climate March in New York yesterday, I felt hopeful for future generations for the first time in a long time.’182 She commented: Standing in the midst of hundreds of thousands of people I sensed solidarity and a shared purpose. So many people from diverse backgrounds came together for change and for climate action. It was uplifting to see grandparents, like myself, indigenous peoples, young people, people impacted by Hurricane Sandy, young women from small island developing states, unions, congresswomen, 171 Ibid., 16. 172 Ibid. 173 Ibid. 174 International Bar Association, ‘Achieving Justice and Human Rights in an Era of Climate Disruption, Climate Change Justice and Human Rights Task Force Report’ (London: International Bar Association, 2014). 175 Robinson, ‘Foreword’. 176 Ibid. 177 ‘Achieving Justice and Human Rights in an Era of Climate Disruption’. 178 Ibid. 179 Ibid. 180 Ibid. 181 ‘Hope and Justice from the People’s Climate March’, Mary Robinson Foundation – Climate Justice, http://www.mrfcj.org/news/hope-and-justice-from-the-peoples-climate-march.html (accessed 1 May 2015). 182 Ibid.

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Ministers, and Mayors, all sharing the experience. There was a fantastic range of banners and posters but they can all be summed up in two words for me – climate justice.183

Mary Robinson reflected that the ‘demonstration gave me hope that people get climate justice now; we must take urgent action to protect our most vulnerable communities and we must take that action in a way that is fair’.184 She was struck that ‘many of the people who marched yesterday, in New York, and indeed all around the world, have been impacted by climate change’.185 Robinson was pleased that the event highlighted the voices of those from the front-lines of climate change: ‘During the press conference we heard the voices of people from the frontlines who are coping with the impacts of climate change.’186 She was also conscious of the push for inter-generational justice and intra-generational justice at the People’s Climate March: ‘Many of the people who marched today are worried about the world that their children and their grandchildren will inhabit if we continue on this fossil fuel driven path.’187 Robinson stressed: ‘There are solutions that can help transform our world into one that is safe, protects human rights, and treats current and future generations fairly.’188 She was hopeful that the event would help build a large popular coalition for climate justice: ‘I know that we have to build a social movement for climate justice that creates pressure on leaders to act.’189 Robinson said: ‘We must continue the momentum started with the People’s Climate March to show leaders that their constituents want change, to show the private sector that their consumers want choice and to show our grandchildren that we tried.’190 Robinson commented: ‘The People’s Climate March beautifully illustrated the need for climate justice.’191 She wished: ‘I hope decision makers act now.’192 Robinson also explained that she wished to show solidarity with Small Island Developing States (SIDS): We want people all over the world to come out and demand that their leaders change course … It affects everywhere now. And we are not on course for a safe world. We need to go below two degrees Celsius.193

Tony deBrum, the Foreign Minister for the Marshall Islands, observed: ‘I join Ms. Robinson in saying that we consider this to be a wonderful occasion to be able to tell the world that the problem of climate change is now, and we must deal with it now.’194 Robinson was of the view that the United Nations had learned important lessons from the Copenhagen negotiations in 2009. She thought that there was better preparation for the United Nations Climate Summit 2014 and the critical Paris 2015 Negotiations: ‘This time the climate

183 Ibid. 184 Ibid. 185 Ibid. 186 Ibid. 187 Ibid. 188 Ibid. 189 Ibid. 190 Ibid. 191 Ibid. 192 Ibid. 193 Goodman, ‘Climate Change Is Now: Former Irish President Mary Robinson and Marshall Islands’ Tony De Brum’. 194 Ibid.

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summit is 15 months before decision time, and there are a lot of steps to be taken, but we need mobilisation so leaders understand this is not business as usual with a little bit of green.’195 At the United Nations Climate Summit 2014, there was a strong emphasis on climate justice. In his opening address, United Nations Secretary-General Ban Ki-Moon observed: ‘We are not here to talk. We are here to make history.’196 The Secretary-General warned that ‘today the dreams of people throughout the world hang in the balance’.197 He stressed that ‘climate change threatens hard-won peace, prosperity, and opportunity for billions of people’.198 Ban Ki-Moon emphasized that climate change posed significant challenges: ‘The human, environmental and financial cost of climate change is fast becoming unbearable.’199 Ban Ki-Moon hoped that there were also opportunities to develop a clean, healthy, fair and stable world: ‘A low-carbon, climate resilient future will be a better future.’200 Accordingly, Ban Ki-Moon urged the members of the United Nations: ‘We must invest in climate-resilient societies that protect all, especially the most vulnerable.’201 He implored: ‘I ask all Governments to commit to a meaningful, universal climate agreement in Paris in 2015, and to do their fair share to limit global temperature rise to less than 2 degrees Celsius.’202 The Mary Robinson Foundation – Climate Justice is focused upon the achievement of an ambitious international agreement at the climate talks in Paris, 2015. There is a great focus in the draft negotiating texts upon the development of a multilateral, rules-based regime under the Convention. Conclusion The Declaration on Climate Justice serves to promote five priority pathways to achieve climate justice – ‘giving voice’; ‘a new way to grow’; ‘investing in the future’; ‘accountability and governance’; and the ‘rule of law’. Mary Robinson and her Foundation play an important role as non-state actors in respect of climate integrity. The human rights advocate helps promote climate integrity in various forms of ‘consistency-integrity’, ‘coherence-integrity’ and ‘context-integrity’. Drawing these themes together, the Declaration on Climate Justice called for ‘transformative leadership’ on climate change: World leaders have an opportunity and responsibility to demonstrate that they understand the urgency of the problem and the need to find equitable solutions now. At the international level and through the United Nations, it is crucial that leaders focus attention on climate change as an issue of justice, global development and human security. By treating people and countries fairly, climate justice can help to deliver a strong, legally binding climate agreement in 2015. It is the responsibility of leaders to ensure that the post-2015 development agenda and the UNFCCC climate negotiations support each other to deliver a fair and ambitious global framework by the 195 Ed King, ‘New York Climate March Numbers Stun Organisers as Key Summit Looms’, Responding to Climate Change, 14 October 2014. 196 Ban Ki-Moon, ‘Opening Speech to the United Nations Climate Summit 2014’ (United Nations, 23 September 2014). 197 Ibid. 198 Ibid. 199 Ibid. 200 Ibid. 201 Ibid. 202 Ibid.

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end of 2015. Local and national leaders will implement these policies on the ground, creating an understanding of the shared challenge amongst the citizens of the world and facilitating a transformation to a sustainable global society.203

The Declaration on Climate Justice is also quite taken with collective action on climate change by communities: ‘As part of global collective action, greater emphasis should be given to the role of diverse coalitions that are already emerging at the community, local, city, corporate and country levels and the vital role they play in mobilizing action.’204 This highlights the need for climate integrity in respect of the international climate regime. The Declaration on Climate Justice was hopeful about such alliances: ‘These coalitions are already championing the solutions needed to solve the crisis and their effect can be maximized by supporting them to connect and scale up for greater impact.’205 The Declaration on Climate Justice stressed the need for a humanist approach to climate change: ‘Climate justice places people at its centre and focuses attention on rights, opportunities and fairness.’206 The Declaration on Climate Justice commented: ‘For the sake of those affected by climate impacts now and in the future, we have no more time to waste.’207 Alluding to the Martin Luther King’s ‘I have a Dream’ speech, the Declaration on Climate Justice concluded: ‘The “fierce urgency of now” compels us to act.’208

203 Mary Robinson Foundation – Climate Justice and the World Resources Institute, ‘Declaration on Climate Justice, the High Level Advisory Committee to the Climate Justice Dialogue’. 204 Ibid. 205 Ibid. 206 Ibid. 207 Ibid. 208 Ibid.

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Chapter 16

The Ethical Responsibility of the Loss and Damage Mechanism: A Consideration of Non-Economic Loss and Human Rights Andrea C. Simonelli

Introduction During the course of the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) annual talks, nations have come together to negotiate over two main points: mitigation and adaptation. In recent years, the body adopted a work stream to understand better the consequences beyond these two goals or, minimally, when adaptation is not enough. The work stream of Loss and Damage came about to investigate both economic and non-economic losses beyond adaptation. The consideration of non-economic loss is a new topic, as much of the talks tend to centre around the economic consequences of changes to development policy. However, Loss and Damage has a great potential to consider and institute recommendations (and subsequent agreements) that deal with the ethical responsibilities the world has to those who have and will lose the most as a result of anthropogenic climate processes. In many cases, non-economic loss will cut deep into basic human rights, especially for those who will lose their entire nation to the rising seas. This chapter will provide an overview of the conception and development of the Loss and Damage work stream, identify three rights that will be in jeopardy due to climatic changes, and evaluate the work streams’ ethical responsibility and prospective capability to handle such losses. In the past 20 years, the UNFCCC has focused on two main goals, mitigation and adaptation. In essence, mitigating the atmospheric damage that has already been done due to greenhouse gas (GHG) emissions and considering adaptive measures that can be taken to deal with the changes that have already occurred. However, in recent years, representatives from multiple nations have come to the conclusion that the progress towards these objectives has been insufficient and thus, their nations would suffer irreversible destruction regardless of the goals in place. A new work plan was devised to investigate what losses these countries and their peoples would face, called ‘Loss and Damage’. Loss and Damage will consider both economic and non-economic loss beyond what can be accomplished in treaties for both mitigation and adaptation. This work stream has been an important development in that it has the potential to set international policy that addresses longterm irreparable damage to ecosystems, human habitats and human rights – many of which are of a non-economic nature. Human rights for all have yet to be fully integrated into any UNFCCC climate agreement but did get a mention in the COP 16 outcome document and are currently in the first negotiating document for consideration at the Paris talks of 2015.1 Multiple rights will be in jeopardy in places in which long-term slow-onset processes are occurring – especially those susceptible to sea-level rise where even national territorial integrity is threatened. Three of these 1 ‘United Nations Framework Convention on Climate Change’ (FCCC/ADP/2015/1, 2015).

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rights are: the right to nationality, right not to be expelled or denied entrance into ones territory of nationality, and the right to self-determination. While Loss and Damage is still in its infancy, it possesses great potential to address the concerns of many of the most vulnerable to climate processes. As a prospective part of an internationally binding treaty through the UNFCCC, any measure to address such loss could be globally binding instead of ad hoc in nature. To date, its main function is that of an advisory body and it can initiate a comprehensive international dialogue about historical responsibility and ethical responsibility in a context beyond mitigation where similar discussions tend to stall. It is also a space to consider rehabilitation, relocation and to address the kind of damage that cannot easily be fixed by traditional aid. In short, the initiation of this governance mechanism has created a specific negotiating space to address many topics and concerns that have no other viable place. Origin of Loss and Damage Loss and Damage has been a priority of the Alliance of Small Island Developing States (AOSIS) since 1991. In that year, they conceived of an international mechanism for which they could access funds immediately after a disaster. An initial insurance transfer, by 2008, the proposal developed into a multi-pronged mechanism with provisions of disaster risk management and compensation and rehabilitation for unavoidable and irreversible damage. Concurrently, the Small Island Developing States (SIDS) had been pushing for recognition for the ultimate ‘loss’, their forced displacement from their homes.2 With the help of other advocates, paragraph 14 (f) was negotiated into the Cancun draft decision in 2010 at the COP 16 which invites parties to take specific action nationally to enact: ‘Measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement, migration and planned relocation, where appropriate, at national, regional and international levels.’3 Additionally, the Cancun Adaptation Framework noted that approaches to address Loss and Damage should consider impacts that include sea-level rise, increasing temperatures and ocean acidification.4 This decision launched the ‘Work Programme on Loss and Damage’ to consider, through workshops and expert meetings, approaches to address this issue. Though a work programme was initiated, Loss and Damage was considered an informational addition and was not a proper instrument as of yet. This changed at the COP 18 meeting in Doha, Qatar in 2012. The decision emerging from this round of climate talks represented a significant advance in the Loss and Damage discussion. It heightened the work stream’s importance by calling for an advanced understanding of noneconomic Loss and Damage, patterns of migration and displacement and identification of the development of approaches to rehabilitation following climate related Loss and Damage. Finally, the Doha Gateway agreement mandated the formation of an institutional mechanism for the next COP.5 This did, in a practical sense, recognize the particular threat posed by sea-level rise. This is an important point because a group of small nations were able to bring to the forefront of the negotiations their most crucial issue. Sea-level rise, as a slow-onset process, had been ignored in the origination of the UNFCCC, as well as in its sister agreements the UN Convention on 2 Maxine Burkett, ‘Loss and Damage’, Climate Law 4 (2014); Chukwumerije Okereke, Prajwal Baral, and Yamide Dagnet, ‘Options for Adaptation and Loss and Damage in a 2015 Climate Agreement: Working Paper’ (Washington, DC, 2014). 3 ‘United Nations Framework Convention on Climate Change’ (Draft decision – /CP.16, 2010). 4 Ibid. 5 ‘United Nations Framework Convention on Climate Change’ (Decision 3/CP.18, 2012).

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Biological Diversity, and the Convention to Combat Desertification developed in that same year (1992). Desertification also creates long-term loss – much of which cannot be directly rehabilitated as well. But sea-level rise has the potential to annihilate entire nations while areas threatened by desertification are within larger national boundaries. At the COP 19 in Warsaw, parties convened to establish a concrete institution. What came of this was the Warsaw International Mechanism (WIM) to address Loss and Damage. The agreement included both slow-onset and extreme events. The parties created an executive committee that would report annually to the COP through its subsidiary bodies.6 The WIM was established under the Cancun Adaptation Framework and not as a third distinct pillar; this made it a point of controversy.7 The meeting got so heated that the developing country G–77 bloc walked out of the negotiation during the second week of the meetings.8 Bilateral discussions did resuscitate the talks and a compromise that resulted in the establishment of the mechanism.9 The decision legitimized the exploration of responses beyond mitigation and adaptation, but does not promise compensation. Additionally, the committee is not empowered to decide any outside claim.10 As the work plan stands from the September 2014 Adaptation Committee meeting,11 it consists of eight items and their subsequent activities. Its main action items include (1) enhance the understanding of how Loss and Damage affects vulnerable developing countries; (2) enhance understanding of and promote comprehensive risk management; (3) enhance data and knowledge on the risks of slow-onset events and their impacts; (4) enhance data and knowledge on noneconomic losses; (5) enhance understanding of capacity and coordination need to prepare for and respond to loss; (6) enhance understanding and expertise on how climate change affects patterns of migration and displacement; (7) encourage comprehensive risk management through financial instruments; and (8) complement the work of the existing bodies and expert groups under the Convention. The COP20 in Lima, Peru in December of 2014, confirmed this work plan from the Executive Committee and outlined its reporting and operational procedures.12 Economic Loss Economic loss has been a fixture in the negotiations for many years. As previously mentioned, Loss and Damage originated as an insurance/risk transfer mechanism. For many years, insurance firms have been collecting data on economic loss associated with catastrophic events such as cyclones, hurricanes and droughts. In this context, economic loss would consist of the kinds of damage to economic systems and personal belongings that can be quantified. This can also be direct or indirect. 6 ‘United Nations Framework Convention on Climate Change’ (Decision – /CP.19, 2013). 7 Andrea C. Simonelli, ‘Summary of Rights-Related Developments at COP19’ (Loss and Damage: Human Rights and Climate Change Working Group, 2013). 8 The author attended the COP19 in Warsaw and was personally informed of the plans for a walkout by one of Bangladeshi delegation. 9 Karen McNamara, ‘Exploring Loss and Damage at the International Climate Talks’, International Journal of Disaster Risk Science 5 (2014). 10 Michael Bothe, ‘Doha and Warsaw: Reflections on Climate Law and Policy’, Climate Law 4, no. 5 (2014). 11 ‘Initial 2-Year Work Plan of the Executive Committee of the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts (Excom) in Accordance with Decisions 3/CP.18 and 2/CP.19’ (Bonn, Germany, 2014); ‘Second Meeting of the Warsaw International Mechanism (Wim) Executive Committee (Excom)’ (Bonn, Germany16–18 September 2014). 12 ‘United Nations Framework Convention on Climate Change’ (Decision 2/CP.20, 2014).

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The destruction of infrastructure due to sea-level rise is a direct economic loss; its value can be calculated. The collapse of a fishery due to changes in the ocean’s pH can create indirect economic losses. If the fishery is irreparably damaged, meaning it can no longer support any fishing, its loss will not be just one seasons’ catch, but the larger economic impact on the area, region and nation in lost revenue and its impact of other sectors. In 2002, the World Development Bank13 presented a report calculating that these losses have grown over time, from $71.1 billion USD per event in the 1960s to $608.5 billion in the 1990s.14 More recently, the World Meteorological Organization (WMO)15 provided a statement at a UNFCCC in 2012, highlighting that 50 per cent of economic losses in Africa between the years of 1980 and 2007 were caused be weather extremes and hazards. It is because of these ever-increasing costs that AOSIS and others sought out a solution. The Munich Re Insurance Initiative has been integral in this process, submitting to the Loss and Damage work plan their ideas to address economic loss. When it comes to an insurance solution, the focus is prevention in terms of risk management and disaster risk reduction (DRR). DRR is often employed in order to reduce exposure to risk thus making insurance more viable. However, Munich Re does acknowledge that there is no possible insurance programmes for certain long-term climate effects such as desertification, sea-level rise, ocean acidification or glacial retreat.16 In effect, long-term economic loss will necessitate some sort of compensation, but international discussion of this issue has been avoided until recently. The Loss and Damage work plan documents do not mention the word ‘compensation’ but a financial component will be on the table for the COP21 in Paris. Non-Economic Loss Non-economic loss, though not a major point of contention in the COP negotiations as of yet, is a very open and grey area. Economic loss is easy to understand; when an extreme event hits and homes and possessions are lost, it is an economic solution that can restore what is now gone. Noneconomic loss relates to items that are not economic in nature or those which are not traded in markets. The UNFCCC provides a technical paper17 that defines non-economic loss in this manner and explains that they occur in three basic categories: individual, society and the environment. For individuals, a non-economic loss may be a loss of life or health; for society it could be the territory or cultural heritage; and environmental non-economic loss could be biodiversity or ecosystem services. Thus a non-economic loss can be ones homeland, the ability to continue one’s own cultural practices, not being able to recreate a livelihood. In this sense, it is connected to identity – a right to something intrinsically important. This touches on what we, as humans, value and how we do so. There are three specific rights that intersect with eventual displacement due to sea-level rise; 13 Anthony G. Bigio, ‘Cities and Climate Change. World Development Bank’ (Washington, DC: World Development Bank, 2002). 14 Calculated in constant 1999 dollars. 15 World Meteorological Organization (WMO), ‘WMO Statement for the UNFCCC Expert Meeting on a Range of Approaches to Address Loss and Damage Associated with the Adverse Effects of Climate Change, Including Impacts Related to Extreme Weather and Slow Onset Events’ (Addis Ababa, Ethiopia, 2012), delivered by Mr Dula Shanko. 16 Munich Climate Insurance Initiative (MCII), ‘Submission: Insurance Solutions in the Context of Climate Change-Related Loss and Damage: Needs, Gaps, and Roles of the Convention in Addressing Loss and Damage: Sbi Work Program on Loss and Damage’ (UNFCCC, October 2012). 17 UNFCCC, ‘Current Knowledge on Relevant Methodologies and Data Requirements as Well as Lessons Learned and Gaps Identified at Different Levels, in Assessing the Risk of Loss and Damage Associated with the Adverse Effects of Climate Change: Technical Paper’ (Geneva: UNFCCC, 2012).

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the right to nationality, the right never to be expelled or deprived entrance to one’s own territory of nationality and the right to self-determination. As it states above, in the Loss and Damage work plan, migration/displacement and non-economic loss are treated as two different categories of research (sections 4 and 6), however, they are ultimately intertwined when we consider the types of rights-based losses that those affected by sea-level rise will be deprived of. Forced displacement creates non-economic losses and yet being forced to leave ones homeland is (in and of itself) a non-economic loss. Loss of Non-Economic (Human) Rights Considering the difficulties faced by those who are most vulnerable to climate impacts, it is important to consider their long-term losses on all levels. There are many inhabitants of small islands who are already coping in situ with the imminent destruction of their homes not long off the horizon. In places such as the Carterets in Papua New Guinea, the damage is such that internal movement is already occurring. But there are places that are losing habitable land which will force individuals and families to have to leave entire countries. This is the case with other Pacific Island nations like the Marshall Islands, Tuvalu, Kiribati or the Maldives in the Indian Ocean. Where the need for external movement is necessary, several non-economic human rights have the potential to come under threat. The loss of an entire country to anthropogenic climate change stretches our current conception of human rights. In the past, displacement was more often due to war and thus the ancient custom of hospitality applied.18 This meant treating any foreigner as one of one’s own, providing food, shelter and any other assistance for reasons such as fleeing violence or disaster. Hospitality was the first form of international protection – or a universal right; it had no special regulations, bureaucratic processes or formalities. It was simply an informal civil pact of profound importance in that it continues to serve as one of the oldest international norms going back to Ancient Greece. The difficulty for those displaced from small islands is that they will lose their homeland entirely and may become permanently stateless. The rights of the stateless are unclear and often unenforced; it is not that they are not equal before the law, but that no law exists for them.19 In a world where the modern state secures one’s rights through citizenship, those who lose theirs, even by no fault of their own, may have serious difficulties. The right to a homeland recurrently emerged as pivotal to human rights issues in the twentieth century. The sovereign state is central to the final authority in human rights as reiterated by the United Nations. Even today’s legal scholars have yet to come to a consensus about whether a state that loses its land can still be understood as having the other properties that makes it sovereign. If some human rights are tangentially attached to a sovereign territory and thus can be jeopardized when national land is lost, the WIM is a mechanism to evaluate how else to ensure the non-economic human rights outlined below. These rights were chosen because they exemplify rights that have been seen as intrinsically important as human rights law has developed. These are intangible rights to concepts which are often taken for granted but come into question for many because of the longterm effects of climate change. 18 Frank.E. Krenz, ‘The Refugee as a Subject of International Law’, The International and Comparative Law Quarterly 15, no. 1 (1966). 19 Hannah Arendt, The Origins of Totalitarianism (New York: Harcore, Brace and Company, 1951).

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The loss of one’s nation in terms of its habitability presupposes several difficult legal challenges that lay beyond economic losses or comparable rehabilitation. How can one’s nationality be replaced? This is not so much a question of getting a new nationality or having one’s nationality while in another place, but fully exercising one’s own nationality in one’s nation. How can one not be expelled when the larger global forces are against them? If, at a certain point, it is too dangerous to stay and one may not be able to enter his/her previous territory, or if it is below the waves, one also cannot be in one’s own territory. How can one’s self-determination be exercised when one’s first preference is to stay in a place that cannot support human habitation anymore? These are all things that are not easily reconciled or replaced. Many other rights are also at stake including one’s security of person, right to subsistence and the right to not be arbitrarily deprived of one’s property to name a few. However, the ones chosen here represent some of the most challenging to restore. The Right to Nationality The right to a nationality (and not be arbitrarily deprived of it) is discussed in the United Nations Universal Declaration of Human Rights (1948)20 and The American Convention on Human Rights (1969).21 The right to a nationality relates to one’s right to be a citizen and one cannot be arbitrarily deprived of this; each person has the exclusive right to it and the right to change or reject it. For those currently living on an island that will no longer exist in the near future, the right to such a nationality may also cease to be real. As previously mentioned, legal scholars have not yet decided if a nation cannot be without its land. Peoples without a land, or who have been deprived of it, are all over the globe with questionable nationalities. This has been the fate of many indigenous peoples under the territorial rule of a state which is not their own, but has usurped their land. These people have already been deprived of this right as their status under the conventional state in which they live is not that of full citizenship. Will this also be the fate of those losing their lands due to climate change? The ‘state’ and its definition is what is being called into question. The term is used in many ways and the problem is not the absence of academic writing but lack of legal definitions. Modern international law on the topic comes from several places. The Peace of Westphalia (1648) indicates that statehood is conditioned on territory and the 1933 Montevideo Convention provides that the state is qualified by having a permanent population, a defined territory, a government and the capacity to enter into relations with other states.22 However, Wong23 argues that this requirement has been loosely applied. No size has ever been designated to support this condition, or that the territory needs to be continuous, or what constitutes a territory. He even cites that nations such as Albania, Burundi, Estonia, Israel, Kuwait, Latvia, Rwanda and Zaire were all admitted to the United Nations or the League of Nations despite having ill-defined borders. But this discussion is about states that are already defined and recognized by the UN system. Do these losses of land equal loss of statehood and thus nationality? Our current understanding of international law and human rights couple one’s nationality with a literal landmass. Arguments have been made that mass migration will result in abandonment 20 United Nations, ‘Universal Declaration of Human Rights’ (GA Res. 217 (III) A, UN Doc. A/ RES/217(III), 10 December 1948). 21 Organization of American States (OAS), ‘American Convention on Human Rights, “Pact of San Jose”’ (Costa Rica: OAS, 22 November 1969). 22 Derek Wong, ‘Sovereignty Sunk? The Position of “Sinking States” at International Law’, Melbourne Journal of International Law 14, no. 3 (2013). 23 Ibid.

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of the state and thus, its extinction.24 If the above-mentioned conditions are strictly applied and population is tied to territory, it will sever this link. In this case, the loss of national territory means losing one’s state and in turn one’s nationality and this is a direct violation of the human rights of those being displaced by climate change. However, the nations who are losing their territories are already considered sovereign and accepted in the international community without prejudice. Considering that these states are not willingly seeking to renounce their sovereignty, would they be kicked out? This may ultimately be a question left to the United Nations proper, but as a subsidiary function of the UNFCCC, the WIM can recommend how this should be handled in such a situation. If failed states are currently not removed from the United Nations, it would seem to follow that those without territory would not, but if the lost states’ citizens are scattered in other lands, how can a nationality – as a function of a traditional state government – be continued? One last concern in this scenario is that individuals in this situation will ultimately become stateless, that without territory and population or a functioning government, it ceases to be a state and thus cannot operationalize the rights that would be attached to being a citizen. McAdam and Saul25 argue that islanders will not be considered stateless because the definition of stateless is premised on the denial of nationality through the operation of law of a state not the loss of a state. It won’t be that the state is purposely keeping their citizens from being able to access their nationality or exercise it, but that there will not be a functioning government of a state to do so. The Right not to be Expelled or Deprived of the Entrance of one’s Territory of Nationality The right not to be expelled from the territory in which one is a national or to be deprived of the right to enter such territory is outlined in the Fourth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (1963).26 To be deprived of entrance in to one’s territory, in this instance, it has to be decided if submerged territory is still a national territory to begin with. This question of international law has not come up before or been addressed anywhere. Jain27 argues that this question has to be related to the international law of the sea. The United Nations Convention on the Law of the Seas (UNCLOS)28 rules which territory can be considered sovereign and thus which can be claimed as a basis for international rights. The author argues that UNCLOS yields two main insights: first, that submerged territory is not territory and, second, that territory is to be capable of sustaining human life. UNCLOS uses a baseline which bases all measurements on a ‘low water line,’ which is the intersection of land with the surface of the water at low tide; submerged territory cannot intersect with the surface of the water. It also must be a naturally formed area of land, which excludes artificial and submerged territory.29 It can be 24 Brad K. Blitz, ‘Statelessness and Environmental-Induced Displacement: Future Scenarios of Deterritorialization, Rescue and Recovery Examined’, Mobilities 6, no. 3 (2011). 25 Jane McAdams and Ben Saul, ‘An Insecure Climate for Human Security? Climate-Induced Displacement and International Law’, in Human Security and Non Citizens, ed. Alice Edwards and Carla Ferstman (Oxford: Oxford University, 2010). 26 ‘Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing Certain Rights and Freedoms Other Than Those Already Included in the Convention and in the First Protocol Thereto’ (Strasbourg: European Court of Human Rights, 1963). 27 Abhimanyu George Jain, ‘The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Territory’, Stanford Journal of International Law 50, no. 1 (2014). 28 ‘United Nations Convention on the Law of the Sea’ (Jamaica: United Nations, 1982). 29 Maryanne Rayfuse, ‘International Law and Disappearing States – Maritime Zones and the Criteria for Statehood’, Environmental Policy and Law 41, no. 6 (2011).

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argued that these conditions on what counts as territory are no longer valid considering modern development. Reclaimed territory (which is in essence ‘artificial’) is going to be, and currently is, essential to adaptation efforts. This is currently a way in which the Maldives have sought to relocate its people internally, through reclamation and the development of new land.30 Additionally, the capability to sustain human life is already almost lost on many islands but, through international trade and imports of food and bottled water, people do still live where they naturally could not. Thus without a reinterpretation of these conditions, some places may no longer be considered territory even when they could if viewed in an alternative fashion. Those who inhabit this land (whether it has been reinterpreted or not) have the right not to be expelled either by ‘an individual or of a collective measure’. The effects of climate change can certainly be argued to be a collective measure. Together, all the nations of the world who have initiated the types of development which has ushered in the changes in climate we now see and every other nation who has since decided to develop in the same vein of technology has contributed to the greater problem, but they are also responsible for the possibility of depriving many of entrance into their own territory. If sea levels have risen as to inundate a land, then one is deprived of such an entrance; being ankle deep on a sand bar is not the same as going home. And minimally, even if most people leave and there is still a small population which does not want to move, how can those few still support themselves? Will trade continue when it is not cost effective to import food and water for a handful of people willing to live in difficult conditions? If the international community is not willing to support such an activity, individuals and communities will be forcibly expelled. Additionally, if this is the case, that those unwilling to leave will not be supported, will they be physically removed? National governments do sometimes force people to move out of areas that are no longer safe – can the international community do the same? Right to Self-Determination The Right to Self-Determination is outlined in Article 1 of the International Covenant on Civil and Political Rights (1966),31 It states that: (1) All peoples have the right of self-determination … they freely determine their political status and freely pursue their economic, social and cultural development. (2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit … In no case may a people be deprived of its own means of subsistence. (3) The States Parties … shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Cordes-Holland,32 in discussing the Torres Strait Islanders, explains that they enjoy a great deal of political autonomy in the management of their social and cultural matters. Islands have internal 30 Andrea C. Simonelli, Perceptions and Understandings of Climate Change and Migration: Conceptualising and Contextualising for Lakshadweep and the Maldives (Norway: Norwegian Research Council, 2014). 31 ‘International Covenant on Civil and Political Rights (ICCPR)’ (999 UNTS 171, 16 December 1966). 32 Owen Cordes-Holland, ‘The Sinking of the Strait: The Implications of Climate Change for Torres Strait Islanders’ Human Rights Protected by The ICCPR’, Melbourne Journal of International Law 9, no. 2 (2008).

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governance councils and tend to empower islanders to determine their own affairs. The author also argues that, if displaced from their land, islanders would experience a great reduction in their political autonomy. The Australian Human Rights Commission33 clarifies that the Human Rights Committee has declined to consider individual complaints on this right; the right to selfdetermination is one of ‘peoples’ rather than individuals. Self-determination will be difficult to reconcile when those who cannot live on their island seek to self-govern and desire to organize within new territory. How much political autonomy will a host county be willing to give? This issue has been a constant struggle for minority groups seeking autonomy within others’ territory. Whether it has been indigenous groups whose right to ancestral land has been taken through colonization or the Basque region of Spain, once a territory has a national government, it has been less than willing to give its land up to another group, let alone grant those its own autonomy. There are many ‘unrecognized’ states around the globe which are semi-autonomous but whose recognition would threaten the territorial integrity of existing states. Examples include Taiwan and Palestine.34 Thus the right to self-determination may not be easily reconciled in a new territorial residence. There is a human rights basis that can protect those who need to migrate due to the destruction of climate change; what is needed is an intergovernmental organization to enforce them. Individual states have had no problems ignoring such rights to continue to provide ample space and incentives to develop in ways that continues to add to climate deterioration. When individual states continue to act in a way that violates the rights of others, it is up to intergovernmental organizations to enforce the agreed upon commitments of their signatories. Recourse exists in the realm of international relations. The United Nations Office for the High Commission of Human Rights put out a document in mid-October of 201435 that reminds all state parties that they have ‘committed to respect and protect human rights’ and that parties already agreed, ‘that Parties should, in all climate-change related actions, fully respect human rights’ in the 2010 Cancun outcome document. Finally it urges parties to ‘respect, protect, promote, and fulfil human rights for all’ in the 2015 climate agreement in Lima. There is also a Human Rights and Climate Change Working Group consisting of non-government organization (NGO) representatives, international environmental lawyers and academics which meets to discuss how to lobby for rights-based language in all of the relevant outcome documents in the UNFCCC. Within the WIM work plan is an explicit directive to develop recommendations to enhance data and knowledge relating to non-economic loss and how climate change affects patterns of migration/displacement. It has created the governance space to address all three non-economic losses by endorsing solutions and clarifications to current international law. Some solutions could include: a continuance of heredity-related nationality granted to those who have been displaced, or minimally, a dual citizenship in these situations. Even if this ends up being only symbolic (in the case that a displaced government does no longer exist or cannot find space to function in any way to support the implementation of previous citizenship rights), it would provide some sort 33 Australian Human Rights Commission, ‘Our Work’, https://www.humanrights.gov.au/right-selfdetermination (accessed 20 February 2015). 34 Jain, ‘The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Territory’. 35 United Nations Human Rights Council (UNHRC), ‘An Open Letter from Special Procedures Mandate-Holders of the Human Rights Council to the State Parties to the UN Framework Convention on Climate Change on the Occasion of the Meeting of the Ad Hoc Working Group on the Durban Platform for Enhanced Action in Bonn (20–25 October)’ (Geneva: UNHCR, 17 October 2014).

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of continuous documentation of who a people are. In the case of the loss of entrance into ones territory, it could suggest that any submerged territory and legal rights to fishing or its previous territorial zone remain intact; disbarring any nation or corporation from using the uninhabited area for what would otherwise be illegal commerce. Finally, it could recommend that there be some way to ensure some level of continuous autonomous government either tied to one’s relocated territory with some sort of recognition as a semi-autonomous sub group which can be integrated into either the host country’s local, regional or national government. These are only a few short proposals that are not meant to be thorough or exhaustive, but to demonstrate the kind of remedies that could be discussed in this governance space and, in doing so, could produce a solution with the potential to be adopted through a binding treaty. An Ethical Responsibility of the Loss and Damage Mechanism as an Institution Amartya Sen36 contends that human rights can be seen primarily as ethical demands and their proclamations as articulations of such demands. This is the reason that the United Nations Office for the High Commission of Human Rights, the Human Rights and Climate Change Working Group and others have continued to push for an articulation of rights in all of the UNFCCC’s negotiating documents. Therefore, many groups on the outside of the process acknowledge the importance of having a formally agreed upon legal treaty which protects human rights. And while these groups cannot prevent every violation, they are following on Sen’s conception that if one is in a plausible position to do something to effectively prevent human right abuses, then one has an obligation to do so. It is this ‘duty’ that compels such groups to attempt to persuade those in the UNFCCC process, the parties to the Convention, to act on these needs. And thus the parties, in turn, also have a duty or responsibility to do what they can to prevent rights violations. One way in which this is possible is by using the Warsaw International Mechanism established under the Loss and Damage work stream to anticipate and attempt to remedy potential violations before they occur. An ethical responsibility also lies with the shared accountability that all nations have through the continued development policies that have driven the warming seen thus far. The responsibility here is in two forms: to the damage that has already been done, and to the potential damage that will occur if a comprehensive, enforceable emissions reduction deal is not reached. All nations have contributed to global warming and, even though the least responsible are the most vulnerable to loss, it is the ethical responsibility of those most responsible to mitigate any long-term damages that have been caused. This is the basis of the climate justice debate between the global north and south that has been going on for decades. From the 1990s, virtually all developing nations have refused to adopt GHG emissions reductions in the name of fairness.37 It has been the suggestion that the poorer nations limit their industrial growth that has led to difficulties in the UNFCCC negotiations, especially the Kyoto Protocol. Powerful nations like the US have refused to curtail their own development excess unless poorer nations did the same.38

36 Amartya Sen, ‘Elements of a Theory of Human Rights’, Philosophy and Public Affairs 32 (2004). 37 Bradley C. Parks and J. Timmons Roberts, ‘Inequality and the Global Climate Regime: Breaking the North-South Impasse’, Cambridge Review of International Affairs 21 (2008). 38 Ibid.

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While Kyoto was considered a big victory as a short-term objective, longer-term goals – including justice – have fallen to the wayside. This is because, while Kyoto was negotiated based on grandfathering emissions incrementally from the baseline year of 1990, two alternative proposals that favoured the developing nations failed to make the cut. These were based on historical responsibility and per capita consumption.39 Historical responsibility would suggest that those who had already been putting GHGs into the atmosphere for many years should reduce their emissions the quickest and, under per capita consumption, each person on the planet is given a certain right to the amount of carbon they can emit and in nations where the individual average is low, they would be able to grow while others may have to reduce.40 It has been argued that there are three categories of concerns that have since become increasingly important to both southern scholars and governments. First, the principles of inter- and intragenerational equity and responsibility need to be more fully incorporated into the regime; second, the regime has skewed towards minimizing the burden of implementation on the polluter instead of giving priority to the most vulnerable; and third, the regime’s focus has become management of the carbon trade instead of the stabilization of GHG concentrations.41 Thus, an effort towards equitable solutions for those who face inevitable loss beyond what mitigation and adaptation can accommodate is the ethical responsibility of all parties to the Climate Convention. Because equity has fallen off of the main UNFCCC agenda, the regime has ignored the vulnerable, and GHG concentrations continue to rise, the public institutional justification (PIJ) of the WIM is the demand for climate justice. It is only because the three main issue areas above have been continuously ignored that there has become the need to fill this gap. The push for the development of the Loss and Damage work programme came from the voices of the vulnerable who had already determined that the status quo of the UNFCCC was not yet working for them. The PIJ of the UNFCCC is to reduce carbon emissions for the good of the whole planet. However, it has been ineffective in doing so and this is what sets the context of the WIM. The environment which will impact the WIM is one that has not yet taken the vulnerabilities faced by the global south in a serious fashion, thus the context-integrity in which the WIM sits is not necessarily conducive to its long-term survival or solving the problems which this environment has thus far ignored. This is best reflected in the response from the global south when the WIM was placed under the Cancun Adaptation Framework instead of a separate pillar. The G–77 walkout at the Warsaw talks demonstrated that those who most wanted/needed such a mechanism did not believe that keeping it within the UNFCCC’s pillars, as they currently stood, was a proper idea. The responsibility to loss that cannot be stopped through emissions cuts or adaptive measures needs to be dealt with aside from emissions cuts and adaptive measures and why the AOSIS nations have been calling for it to be dealt with as such. Thus giving the WIM its own institutional space and removing it from its poor context within adaptation would further justify its existence as a full-fledged mechanism to tackle issues of climate justice that had been ignored. This is especially important because the WIM’s work plan does focus on furthering understandings about vulnerable populations, how these can be mitigated and how to assist in their recovery. Put in the terms of the Comprehensive Integrity Framework of Chapter 2, 39 Ibid. 40 Ibid. 41 Adil Najam, Saleem Huq, and Youba Sokona, ‘Climate Negotiations Beyond Kyoto: Developing Countries Concerns and Interests’, Climate Policy 3 (2003).

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in order to live up to its PIJ, the WIM (and the UNFCCC more generally) needs to have the appropriate internal organizational arrangements. In this case, those arrangements are necessary to give institutional significance to the WIM’s values and goals. However, no matter the ethical responsibility shared by all nations (especially the top emitters) to assist those with detrimental loss, politics tends to steer policy away from doing what can and should be done to ameliorate any loss of non-economic rights. Money often gets in the way. A main point of contention that held back the Mechanism’s early development was the word ‘compensation’;42 with small islands asking for an economic remedy to continuous destruction due to sudden onset events. Developed nations have feared that committing to compensating loss would tie them into having to confront their (justified) historical responsibility to the developed world concerning long-term emissions damage. This has created a rift between negotiators and has distracted from developing some potential recourse for non-economic rights. Currently, the Warsaw International Mechanism is still nested within the UNFCCC structure under the adaptation pillar and thus guided by its’ normative morality and ethical behaviours. Thus if the parties have been avoiding such responsibilities, no matter its’ imperative, the Loss and Damage work stream can only deliver if those doing the negotiating in positions of power have a sense of ethical responsibility towards the losses they are causing. However, as of the February 2015 session of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), part of the suggested negotiating text under Loss and Damage is that the governing body shall establish a ‘compensation regime’ for support due to the damage done by slow-onset events.43 The Paris talks in December will demonstrate if the developed nations are finally ready to talk about economic compensation or if its addition will only reinforce the previous rift between nations and hold up forward movement towards reconciliation of non-economic rights losses. Conclusion There are strong ethical demands for human rights to be included in the climate negotiations, and especially the newly developed Loss and Damage work programme and its formalized WIM. The basis for these demands exist due the nature of irreversible loss that many Small Island States will face as their countries become uninhabitable due to development policies that have yet to curb GHG emissions the world over. However, while the WIM has the potential to assist those who will lose some of their most basic non-economic rights, it is hard to ascertain if the power politics of economic loss will get in the way. In this way its prospective capacity is dependent on how other political issues interact and possibly distract. Yet, if the Executive Committee of the WIM can and does develop section 4 on migration/ displacement (considering the effects of section 6 on non-economic loss) and produce solutions that cost little but mean much intrinsically, it can still have positive effects on many. While there are no remedies for certain types of loss, if nations embrace their ethical responsibilities towards one another in this case, it will go a long way to demonstrate a practical climate justice for individuals losing everything.

42 Koko Warner and Sumaya Ahmed Zakieldeen, Loss and Damage Due to Climate Change: An Overview of the UNFCCC Negotiations (Oxford: European Capacity Building Initiative, 2011). 43 ‘United Nations Framework Convention on Climate Change’.

Chapter 17

Heating up Climate Change Norms – Lessons from Human Rights Hugh Breakey

Introduction Human rights constitute a remarkable success story in international affairs. In this chapter, I analyse the many sources of justification for human rights and considers whether and how these grounds can be employed to promote climate ethics norms.1 I begin the analysis by overviewing the different types of philosophical theories of human rights. As we will see, each type of theory captures a distinct perspective (seven in all) that help explain why human rights enjoy widespread allegiance. In the second section I reflect on how climate ethics and negotiations map onto these seven lines of justification, suggesting that four approaches prove relatively well-trammelled ground. In examining these four areas, I gauge what we can learn from how human rights managed to tap these resources as a ground for action. The third section looks to the remaining three grounds and considers their untapped potential for motivating moral compliance to climate principles. I aim, therefore, to bring into the context of climate change some of the lessons that helped human rights achieve genuine reforms. In so doing, I do not imply that ‘if only’ climate activism had more closely tracked human rights efforts, improved results would have been secured. To the contrary, and as we will shortly see, human rights activism took decades – even after the extraordinary achievement of the Universal Declaration of Human Rights in 1948 – before it began to impact in a genuine way on international relations and domestic treatment of minorities and dissidents. If we look further back to the cultural shifts that paved the way for the emergence of a rights-culture, our gaze pans back through the centuries. And as any glance at world headlines today demonstrates, human rights still have a long way to go to achieve anything approaching universal respect and compliance. Comparatively, climate change norms remain in their infancy; it is a sobering thought that the urgency around climate change requires its norms to attain widespread allegiance and effect real change in a more accelerated manner than (even the apparent success story of) human rights could achieve. But the hope of this chapter is that climate efforts can benefit by tracing some of the trails blazed by human rights proponents in the previous decades. In the terms set down in Chapter 2’s Comprehensive Integrity Framework, a key part of the global climate regime’s coherence-integrity consists of the values of its institutions’ members. So too, the values of external actors – including the domestic populations of member states – decisively 1 Another approach would be to look to the institutional supports that have proven successful in human rights implementation – this is the route taken by Donald Brown in his Chapter 5 in this Volume. A different approach again would consider human rights norms as part of the context-integrity (and perhaps even the coherence-integrity) of the global carbon regime: see Bridget Lewis, Chapter 14 this volume.

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shape the regime’s context-integrity. The more that the values of actors inside and outside the regime chime with the regime’s fundamental goals – its public institutional justification (PIJ) – the greater the chance that those goals will be achieved. With this in mind, success depends (inter alia) on achieving an ‘overlapping consensus’ (in Rawls’ terms)2 on climate norms – meaning that very different actors, for very different reasons, have reason to endorse the same values. By putting forward seven different normative grounds that climate norms can draw upon, this chapter hopes to show how we can achieve widespread support for vital norms despite human heterogeneity and cultural diversity. Context-integrity for the global climate regime, in the form of attractive and substantive moral commitments supporting genuine action, is possible even in a pluralist world. Human Rights: Seven Grounds Substance of the Practice Human rights enjoy a long pedigree. The norm’s antecedents date back through the Early Enlightenment theories of natural rights, and threads of their moral claims can be found at least as far back as the ancient Greeks.3 In the eighteenth century, the idea acquired institutional force in the passage of the American Bill of Rights and the French Declaration of the Rights of Man. These factors combined with a widespread repulsion of the horrors of the Second World War – and of the Nazi regime in particular – to drive the incorporation of human rights into the UN Charter of 1945. Human rights hardly enjoy a prominent place in the Charter4 – the fundamental purpose of which is to prevent international war – but their mention at key points was sufficient to require subsequent elaboration, and one of the first points of business for the nascent international organization was the formation of a universal bill of rights. Early negotiations showed the necessity of creating a non-binding Declaration rather than a binding treaty, and after a lengthy process of dialogue, consultation and debate, the UN General Assembly affirmed the Universal Declaration of Human Rights in 1948.5 Work began almost immediately on developing hard-law multilateral treaties, but their realization was a slow process, with the first of these not adopted by the General Assembly until 1966, and only entering into force over a decade later. Even at that point, almost three decades after the Declaration, human rights remained largely absent from international affairs.6 Over the next couple of decades however, all this changed, and human rights assumed a prominent – and now almost ubiquitous – status as the singular international norm governing a state’s proper treatment of individuals. It is now beyond dispute that a state’s violations of human rights are a proper subject of international concern and criticism, and that the norm of ‘state sovereignty’ does not allow such violations, nor shield against external concern over such violations. While notions of humanitarian

2 John Rawls, Political Liberalism, Expanded ed. (New York: Columbia University Press, 2005). 3 Lynn Hunt, Inventing Human Rights (New York: W.W. Norton, 2007); Micheline R. Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (Los Angeles: University of California Press, 2008). 4 Hugh Breakey, ‘What Human Rights Aren’t For: Human Rights Function as Moral, Political and Legal Standards – But Not as Intervention-Conditions’. Research in Ethical Issues in Organizations, 13, 41–59 (2015). 5 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001); Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia: University of Pennsylvania, 1999). 6 Daniel Thomas, The Helsinki Effect: International Norms, Human Rights, and the Demise of Commuism (Oxford: Princeton University Press, 2001).

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intervention remain as contested as ever, no UN Member State publicly rejects human rights or holds that they are not a legitimate object of international attention.7 Seven Types of Human Rights Theory: Seven Grounds of Moral Justification We currently possess a plenitude of human rights theories: that is, philosophical accounts of what human rights are, and why they command our allegiance. Typically, theorists present these theories in opposition to each other, as if their preferred theory (or type of theory) constituted the final, essential truth on human rights. I will not employ the theories in this way here. Instead, I will take it that each type of theory contains insights that help explain some facets of the practice and strength of human rights. In particular, each of the major theories of human rights specifies a particular set of reasons for taking human rights seriously. Understood in that light, the theories are not incompatible. The same agent may possess multiple principled reasons for acknowledging the legitimacy of human rights. This should not be surprising. Most citizens hold multiple moral reasons to obey the law. They can believe it is substantively wrong to steal, for example, and also believe that they should respect laws that were constructed through a legitimate democratic process. For such people, resisting thievery is morally over-determined. Equally, different agents may each possess different types of reasons for endorsing human rights. Understood in this way, the multitude of human rights theories provides an insight into human rights that extends beyond the claims of each individual theory. Because they have myriad different grounds, human rights were able to appeal to an extraordinary cross-section of the world’s population. Those who might resist human rights on one ground often found they had reason to support them on another. For this reason, human rights managed to command allegiance across a wide sweep of agents who disagree on many other substantive political issues. So what do I mean when I say that different theories of human rights provide different sources of justification and motivation for human rights implementation? The theories show that we can assert allegiance to human rights on an array of grounds: their objective moral reality; their functional appropriateness; as an output of deliberative debate; as legitimately formed law; as the subject of our explicit agreement; as part of our social identity; and as a pragmatic tool to further other goals. The remainder of this section explains each of these seven grounds in a little more detail. Objective Moral Ground The objective moral stance asserts that human rights demand our allegiance because respecting and promoting human rights is intrinsically the right thing to do. On this footing, human rights comprise fundamental moral principles – though they need not be asserted as the only such principles (many people respect human rights and animal rights, for instance). Such human rights resemble the early enlightenment ‘natural rights’ familiar from political theorists like John Locke,8 while contemporary theories are developed and filled out in new ways.9 7 On the difference between human rights as international standards for critique and condemnation, but not for intervention, see Breakey, ‘What Human Rights Aren’t For’. 8 John Locke, Two Treatises of Government and a Letter Converning Toleration (New York: Yale University, 2003). Jeremy Waldron provides an example of a contemporary thinker drawing together the Lockean approach and human rights. Jeremy Waldron, Liberal Rights (New York: Cambridge University Press, 1993). 9 For example, James Griffin, On Human Rights (Oxford: Oxford University Press, 2008); Amartya Sen, ‘Elements of a Theory of Human Rights’, Philosophy and Public Affairs 32, no. 4 (2004).

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Functional Ground ‘Functional’ theories of human rights begin by specifying a particular role that human rights norms are designed to fill (or a ‘project’, ‘objective’ or ‘problem to be fixed’). Actual human rights practice determines the substance of this role, which is often held to include ‘international minimum standards for states’ proper treatment of their citizens, capable of triggering international action’. With the role established empirically, functional theorists then employ normative moral arguments to determine what substance we should impute to human rights so that they can legitimately and efficaciously fulfil that role. Deliberative Ground Functional theories can intertwine with another way of thinking about human rights, which focuses on the discourse that produced them.10 Often drawing on the work of Rawls and Habermas,11 these ‘political’ theories of human rights set down reasonable standards for debating governing principles and norms. Such standards can include (for instance) that the demands of pure power and realpolitik must be side-lined, and that participants should only appeal to reasons that can in principle be accepted by all other participants – so no recourse should be made to parochial religious or metaphysical doctrines. Human rights norms then arise as outputs from such discourses, and draw their normative validity from the legitimacy of the discursive processes that constructed them. While no international norm can claim an untainted deliberative provenance, human rights did emerge through a lengthy, explicit and inclusive process of drafting, routinely drawing on explicit moral and even philosophical reasoning.12 More than any other comparable norm operating in the same space, human rights can claim to warrant respect on the basis of the inclusive deliberative process that crafted the norm. Procedural Ground (Human Rights as Law) We can glean a more general insight from deliberative theories of human rights: a norm can draw its legitimacy not from its intrinsic moral rightness, but instead from the process that birthed it. While deliberative theories focus on the discursive process of reason-giving, this insight generalizes to other legitimizing procedures. For example, an agent might acknowledge they should comply with a norm that was created by a democratic vote, or perhaps by the judgment of an objective and impartial arbiter. This acknowledgement might occur irrespective of whether the ‘debate’ leading up to the vote or judgment failed to follow any deliberative norms. That is, a norm can acquire procedural legitimacy even if it fails to possess deliberative legitimacy. One particularly important procedure is the one that, for a given community, creates law for that community. For domestic democratic states, this process usually occurs through legislation in representative chambers. In the international context, the creation of legal obligation typically occurs through states signing and ratifying a treaty. As such, a nation might comply with human rights norms simply because, for that nation, they are legitimate law and demand respect as such. The legal positivist, in particular, will see this procedural ground as fundamental – acknowledging human rights because they have passed through the proper processes so as to be recognized as law. 10 Joshua Cohen, ‘Minimalism About Human Rights: The Most We Can Hope For?’, The Journal of Political Philosophy 12, no. 4 (2004). 11 Kenneth Baynes, ‘Discourse Ethics and the Political Conception of Human Rights’, Ethics and Global Politics 2, no. 1 (2009). 12 Glendon, World Made New; Morsink, UDHR: Origins, Drafting and Intent.

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Consensual Ground One of the oldest reasons for complying with a given norm is that one has explicitly agreed to it – perhaps one has even promised or formally contracted to comply. In the international context, explicit agreement can occur in various forms, each eliciting a different level of state commitment and sanctions for non-compliance.13 The strongest agreement a state can give is by signing and ratifying an international treaty. Most legal conceptions of human rights hinge on this act of agreement, for legally the main way for states to acquire international obligations is through signing a treaty, meaning that in the international context procedural/legal grounding closely tracks consensual grounding. Even so, this conception of human rights differs in principle from the procedural conception, and can differ in fact. Consider a nation that accepts that General Assembly resolutions constitute a legitimate way of creating a least ‘soft law’.14 In such a case, the majoritarian output of the Assembly vote (such as the with Universal Declaration) might be accepted as legitimate on procedural grounds, but the nation does not have any additional consent-based reason for adhering to the Resolution if it did not itself vote for it and thereby render its own, explicit agreement. Conversely, a state that did give its consent has an additional consent-based reason to comply. Communitarian Ground On this conception, human rights are endorsed because they express the identities of those communities bound by them.15 A state abides by human rights because they are what the state conceives it ‘stands for’ and feels ownership towards. If a state (or region, such as Europe)16 has a history implicated in the development of citizens’ natural rights; or if it played a role in the development of current international human rights instruments and practices,17 then the state can endorse human rights as an expression of its specific culture – out of a sense of social pride akin to patriotism. We can call this a communitarian grounding of human rights. Pragmatic Ground Finally, an agent might throw her support behind human rights because of the proven efficacy of that norm to effect certain outcomes that the agent has reason to desire. Sometimes, these may be parochial or ideological goals18 – or even narrowly self-interested ones. Equally though, these 13 See Hugh Breakey, ‘Parsing UN Security Council Resolutions: A Five-Dimensional Taxonomy of Normative Properties’, in The Security Council as Global Legislator, ed. Vesselin Popovski and Trudy Fraser (Abingdon: Routledge, 2014). 14 Christine Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, International and Comparative Law Quarterly 38, no. 4 (1989). 15 Social constructivists theories of human rights often press this line of thought: for example, Thomas Risse and Kathyrn Sikkink, ‘The Socialization of International Human Rights Norms into Domestic Practices’, in The Power of Human Rights: International Norms and Domestic Change, ed. Thomas Risse, Stephen C. Ropp, and Kathyrn Sikkink (New York: Cambridge University Press, 1999). It is explicit in postmodern accounts such as Rorty’s. See, Richard Rorty, ‘Human Rights, Rationality, and Sentimentality’, in On Human Rights: The Oxford Amnesty Lectures 1993, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993). 16 Thomas, Helsinki Effect, 21. 17 Glendon, World Made New, 143. 18 For example, Thomas, Helsinki Effect, 162.

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goals might be moral ones, such as to improve international amity or to contribute to overall human happiness. In the abstract, human rights norms might not have been chosen as the optimal avenue to further these goals. But social norms are path-dependent, and in the contemporary international context human rights enjoy an unmatched moral, rhetorical and institutional force. For this reason, different agents with distinct goals can lend support to the human rights cause, and gather under its banner. Call this a pragmatic grounding.19 Grounds of Current Climate Ethics and Norms The previous section suggested that human rights enjoy widespread overlapping consensus because of the many different grounds of support that can be marshalled on their behalf. An agent sceptical of universal objective moral facts (the first and most obvious ground) might yet find themselves compelled to defend human rights on functional, deliberative, pragmatic or other grounds. As many commentators have observed, the need to respond to climate change is a moral issue (as well as being a collective-prudential one).20 What then grounds this moral demand and justifies the changes and sacrifices that climate responses require? In mainstream climate discourse and practice, we can locate four of the seven above-noted grounds at work. This section reflects on these four grounds of objective morality, functional, procedural and consensual perspectives, and considers how their employment resembles or differs from their workings in the human rights context. Objective Morality: Theories of Justice Much of the moral philosophic attention to climate ethics has focused on objective moral grounding. It asks what our best theories of justice, distributive fairness, collective responsibility and harm say about how we should approach climate change.21 This focus on objective moral grounding is of course understandable; most people’s common-sense moral discourse and practice tends to presume such a grounding, making this approach a sensible point of departure. Without widespread conviction that responding to the threat of climate change is – simply – the morally right thing to do, it is doubtful that the necessary changes in human behaviour will occur. My purpose here is not to appraise any one of the many applications of objective moral theorizing to climate change.22 Rather, I simply note three areas where we can discern differences between how objective moral theorizing worked in the context of human rights versus how it operates in climate ethics. To begin, a pleasing result of the application of contemporary moral theories about climate change has been their convergence on the major direction forward. Every mainstream moral and political theory recommends the same general trajectory – namely, that developed countries should pro-actively respond to the problem, that they should aggressively shift their economies towards 19 Echoes of the pragmatic grounding can be found in: Risse and Sikkink, ‘Socialization’. See also, Richard Rorty, ‘Response to Randall Peerenboom’, Philosophy East and West 50, no. 1 (2000). 20 For example, World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), The Ethical Implications of Climate Change (Paris: UNESCO, 2010); Donald A. Brown, Climate Change Ethics: Navigating the Perfect Moral Storm (London and New York: Routledge, 2013). 21 For example, the approaches in: Stephen M. Gardiner et al., eds., Climate Ethics: Essential Readings (Oxford: Oxford University Press, 2010). 22 For more on this avenue, see the Pickering Chapter 7 in this volume.

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non-CFC-producing energy alternatives, and that they should support developing countries (with finance and technology) taking up renewable trajectories.23 All respectable moral theories, that is, say that developing countries should be doing much more than they currently are. In this, climate ethics resembles human rights theorizing, where many different lines of ethical argument (utilitarian, deontological, religious) overlap on prescribing these basic entitlements. This fact of convergence, however, papers over some substantial differences in what the theories recommend regarding how aggressively this shift should take place (at what cost to economies) and how much is owed to developing countries. In the context of human rights these differences also arose, but in that context they did not stymie agreement because there was widespread acknowledgement that human rights should only cover a minimum level of decent treatment. It was accepted that most states would and should do more for their citizens than the bare bones of human rights compliance. In the context of climate change, however, the community shares no such agreement on minimalism, and state blocs have much to lose or gain by holding out for their preferred distribution of sacrifices and entitlements. A collective agreement to only do the minimum on climate change effectively entrenches that specific result as the over-arching global policy – consigning different views on international obligations and inter-generational justice to irrelevance. For this reason the disagreement in moral theories, inasmuch as they are reflected in actual states’ negotiating positions, form a significant impediment to global action. A related problem resides in the chasm between state’s actual best practice, and what is demanded – at minimum – by our moral theories. Of course, in the context of human rights, no state could assert (either now or back in 1948) that they held an impeccable record of respect for human rights standards. But many states could reasonably argue that they were not that far off a high level of compliance with most of the Articles, and that they expected improvement moving forward. With climate ethics the situation is quite otherwise. The ethical demands appear much more radical than anything states have so far been willing to countenance.24 Even the most lenient moral stance, allowing developed countries to ‘grandfather’ their emissions (that is, to legitimately emit more in the future on the basis of their reliance on emissions created in the past) still requires far greater sacrifices from developed nations than they are currently willing to promise.25 While some concessions to realpolitik are unavoidable, the size of the gap makes the application of objective morality to climate change policy especially challenging in the context of motivating action. Nobody likes to hear that the sacrifices they and their children must bear are vastly more than they have hitherto been willing to countenance, and we can understand why political leaders might evade such unpopular stances. Finally, the ethical theories can fail to link up with human emotion and imagination in such a way as to drive personal and political action. Human rights violations necessarily involve the harsh or even brutal treatment of a specific individual – with whom it is easy to sympathize. The mediated and diffuse process through which climate change harms occur tend to rob climate justice principles of any intuitive and emotive force. It is possible to believe in the cogency of the principle but fail to feel the wrongfulness of switching the air-conditioning on, or taking a holiday to Paris.

23 Brown, Climate Change Ethics. This might even require radical change to current high-emission economies. Konrad Ott, ‘Domains of Climate Ethics’, Jahrbuch für Wissenschaft und Ethik (2011). 24 Ott, ‘Domains of Climate Ethics; Carl Knight, ‘What Is Grandfathering?’, Environmental Politics 22, no. 3 (2012): 410. 25 Knight, ‘What Is Grandfathering?’.

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Functional Perspective (Climate Principles) Unlike the objective moral grounding, the functional perspective eschews employing full-scale theories of justice, and narrows its concerns to developing ‘mid-level’ principles that can work as feasible and appropriate tools to respond to a specific problem. Ideally, this approach can improve on some of the practical problems besetting the moral objective grounding. By limiting its approach to sensible ways of responding to a specific problem, it promises to avoid some of the controversies fomented by comprehensive theories of distributive justice. By its concern with feasibility, the functional perspective allows compromise between different positions. Falling somewhere on a continuum between practical and fully-ethical, the climate principles developed in Intergovernmental Panel on Climate Change (IPCC) negotiations – including ‘common but differentiated responsibility’ and ‘inter-generational equity’ – can profitably be seen as functional principles: morally justifiable tools designed to respond to a specific issue. In functional style, these principles allow us to sidestep larger questions of global justice. Hitching responses to climate change to more general moral missions to fix the world’s injustices makes action more difficult and the ethics more controversial. Notwithstanding the vital importance of these ‘mid-level principles’, it would be misleading to say that they are a ‘focus’ of actual climate discourse and practice. In the realm of human rights, years of negotiation were set aside to develop these principles in the Universal Declaration – and decades more were required to craft legal instruments specifying them. It beggars belief to imagine this progress could have occurred if these negotiations had simultaneously aimed to gain consensus on concrete steps specific nations could undertake to improve their human rights failings.26 In contradistinction, in UNFCCC negotiations, the principles emerge in summary form, and are developed alongside (even faute de mieux with respect to) attempts at concrete, binding steps to respond to climate change. Summits and Conferences of the Parties are castigated with failure if they achieve only agreements at the level of principle, rather than implementation. The difference of focus compared with human rights could not be starker. Taking a leaf out of the human rights handbook, then, one potential way forward would be for willing states – across the north–south and other major divides, and perhaps in combination with enabling non-government organizations (NGOs) – to progressively negotiate the key midlevel climate ethics principles to frame the ensuing discussion.27 In so doing they should avoid discussing specific cases or aiming for concrete steps. Several Further Reflections on Functional Mid-Level Principles Warrant Observation First, principles that fit well alongside existing legal-political norms and the overall international environment are more likely to prove successful.28 If we wish to construct a norm to operate within the system, then the more the norm respects state sovereignty and economic development, the better 26 State representatives drafting the Declaration largely avoided invoking or applying concrete issues in other countries. Morsink, UDHR: Origins, Drafting and Intent. 27 A UNESCO process was heading in this promising direction, before being stymied by certain memberstate vetoes. See, World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), Statement on Issues Relevant to Consideration of the Desirability of Preparing a Declaration of Ethical Principles in Relation to Climate Change (Paris: UNESCO, 2012). The recent ‘Oslo Principles’ developed by a group of experts in international law can be seen as an attempt to develop appropriate functional climate principles. See, ‘Oslo Principles on Global Climate Change Obligations’ (2015), http://www.osloprinciples. org/principles/ (accessed 17 May 2015). 28 See also Maguire, Chapter 3 in this volume.

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we would expect it to operate. Steven Bernstein observes this occurrence in the progression of the sustainable development norm to (what he calls) the ‘liberal environmentalism’ of Rio.29 Liberal environmentalism accomplished more than previous norms because of its fit with established norms and practices – but exactly these qualities limited it from demanding the greater action required to respond to climate change. Equally, developing functional norms involves employing uncontroversial and commonly held ethical arguments to respond to the specific problem. Arguably, interpretations of ‘historical responsibility’ that extend responsibility before climate change was widely accepted (for example, in the 1990s) spectacularly fail this test. So far as I am aware, no state – from north or south – has ever accepted its own strict economic liability for highly mediated results, following from mass collective action, of acts generations previous, that at the time were hardly imagined (much less known) to have any such effect. Human rights succeeded by aiming to appeal to widespread principles that almost every culture acknowledged in some form, not by inventing new norms of harm that even the inventor itself does not recognize in their own domestic or international legal affairs. Second, norm specificity can be important in the international context, so that agents can determine when violations of the norm occur. We require sufficient specificity at least to be clear when a state’s declared public position violates the norm. For instance, is a state demanding that it will not countenance climate change action if this will ‘harm’ its economy effectively repudiating all the agreed principles? The ambiguity plaguing the current principles makes this adjudication difficult. Third, the inter-relation between the principles (as they appear in key instruments) and countervailing ethical norms proves ambiguous. For example, the UNFCCC enumerates many of the key principles – but it also foregrounds economic development (Art. 3(4, 5)). Equally, its commitments imply the way forward initially allows moderate grandfathering for Annex 1 countries (Art. 4(2(b))). But if we are to count large-scale emissions of GHGs as pollution, then this commitment appears to clash squarely with the polluter pays principle. Human rights norms needed to squarely confront the countervailing norm of state sovereignty, with the major drafters – aware that nothing would be left of the rights if they ceded to the amorphous ‘needs of state’ – repeatedly working to keep such qualifications out of delineations of human rights.30 In the climate context, the current norms (as they appear in the key instruments) remain incomplete grounds for policy and critique until their inter-relation with opposing principles is settled. When exactly can sustainability trump development – and when if ever can equity trump both? In sum, climate ethics discourse and practice employs mid-level functional climate principles. But unlike their human rights counterparts, these norms have not been the explicit subject of international negotiation, and nor are they (at present) functionally well suited to their role.31 Consensus and Procedural Perspectives The practical policy agenda for climate mitigation focuses on trying to achieve binding multilateral agreements. There are powerful reasons for this focus. Because climate change presents as a collective action problem, where free-riders can enjoy the benefits created by others, there is arguably a strong need for comprehensive, binding and enforceable agreements. 29 Steven Bernstein, ‘Liberal Environmentalism and Global Environmental Governance’, Global Environmental Politics 2, no. 3 (2002). 30 Morsink, UDHR: Origins, Drafting and Intent. 31 For further discussion of functional norms, see Maguire, Chapter 3 in this volume.

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Both the consensus and procedural perspectives attain their full force after the agreements and decisions have been made, meaning that other drivers must be employed to bring nations to the point of formal legal agreement. That said, lesser forms of consent, and earlier forms of procedural legitimacy, still carry weight. As human rights history showed, public endorsement and proclamation matter. States might believe that ‘talk is cheap’ – but they can subsequently find themselves trapped by their own rhetoric.32 Even if formal ratification proves impossible, then, supporters of climate action can still strategically consider what other kinds of state consent, in what situations, over what sorts of subjects, might lead to beneficial local or international changes. So too, the procedural ground can apply (before the decision) to the integrity of the process by which principles develop, and a given state might be perceived as a better or worse participant in this process. To fail to engage in good faith implies a lack of respect for the process, and for the other participants who take it seriously. State’s desires to see themselves as ‘good global citizens’ and respectable members of the international community feed into this concern for respecting the tide of international opinion. These factors can form the basis of moral critique for ‘spoilers’, understood as states deliberately stymieing negotiations, or lagging well behind the rest of the world on their commitments. Recent comments on the Australian position on climate change as it hosted the G20, and then when it took its recalcitrance into the Lima Conference of the Parties, reflected exactly this accusation.33 In other words, even with no formal decision or official process, the international community can start to settle on values and ways forward, and respect for the collective’s judgment can forge respect for climate action even for a state with little interest in climate justice per se. However, in this case everything rests on the perceived legitimacy of this process. In particular, the ‘north versus south’ divide infecting much climate discourse currently prevents the procedural perspective from furnishing strong reasons for action. Even if major emitters settle on a robust norm for limiting emissions that impels recalcitrant developed countries (like Australia) to toe the line, developing states might evince little allegiance to north-dominated decision-making. Injustices and systemic biases within the decision-making process threaten the legitimacy of the result. Alternative Grounds for Climate Ethics Norms This section turns to the three remaining normative grounds, briefly considering how climate action could be improved on their basis. Deliberative Perspective The deliberative perspective aims for an outcome where we can say, ‘Our climate ethics principles were developed through inclusive moral discourse and legitimate reason-giving.’ While

32 Risse and Sikkink, ‘Socialization’, 27. 33 See, for example, Rosie Lewis, ‘Shorten: Barack Obama Shirt Fronted Tony Abbott on Climate’, The Australian, 16 November 2014, http://www.theaustralian.com.au/news/shorten-barack-obama-shirtfronted-tony-abbott-on-climate/story-e6frg6n6–1227124556426 (accessed 16 November 2014); ‘G20: David Cameron Urges Tony Abbott to Do More on Climate Change’, The Guardian (Australia), 16 November 2014, http://www.theguardian.com/environment/2014/nov/16/g20-david-cameron-urges-tony-abbott-climatechange (accessed 16 November 2014).

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moral speech, even in the ordinary media, suffuse climate discourse,34 rarely do these invoke specific principles, much less actual moral arguments.35 States routinely talk past one another, mischaracterizing and simplifying others’ positions, and it is unclear how their assertions of sovereignty and ‘rights to development’ relate to climate norms. Much of what was said above on functional and procedural norms applies here. Greater attention to, and public norms regarding, the types of reasons and interests that can be employed in climate negotiations provide a further dimension on which progress can be sought. Even if states cannot agree on what types of considerations should impact on climate negotiations, they may be able to develop a shared understanding of what types of considerations (or strategies, threats, and so on) should not play a role. While some efforts have been made on improving the discourse in climate change institutions, the deliberative perspective is arguably one arena where much more could be done. Some welcome changes may be on the horizon. At time of writing, the current Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) Elements Text that forms the draft negotiating text for the upcoming Conference of the Parties (COP) in Paris contains references to an ‘ex ante consideration process’ and a ‘strategic review’ mechanism.36 Each of these measures contains options where various bodies judge the fairness and adequacy of member states’ intended nationally determined contributions (INDCs). While it remains to be seen if the post-Paris regime includes such measures, they could help clarify functional mid-level climate principles, and by so doing improve the discourse’s moral quality – requiring states to explicitly mount moral arguments with or against these principles. As such, even if such measures in the short term failed to impel greater sacrifices on individual states, over time their real impact might be to change the climate negotiation discourse – just as member states deliberating the Universal Declaration followed norms regarding what reasons would be aired and taken seriously.37 Communitarian Perspective On the communitarian conception, states uphold climate norms because they feel, ‘These norms capture our identity. We are proud to uphold them.’ Unfortunately, very few states can claim environmental values in the same way that some (for example, western European, but also some post-colonial) states could claim special historical ownership of human rights. However, there are some regions – such as perhaps the European Union (EU) – which invoke some sense of ownership. States that can claim to be ‘early movers’ or taking leadership roles can gain ownership of key issues, but this takes consistent commitment and genuine sacrifice; one is not asserting ownership if one demands the norm’s entitlements, as opposed to shouldering its responsibilities. Claiming ownership and identification with climate change principles requires real investment and achievement – and requires attention to manipulation by others illicitly trying to claim the same mantle. Integrity and reliable certification measures that increase confidence in a group’s genuine commitment help cultivate this sense of identification.

34 Cristina Besio and Andrea Pronzini, ‘Morality, Ethics, and Values Outside and inside Organizations: An Example of the Discourse on Climate Change’, Journal of Business Ethics 119 (2014). 35 Brown, Climate Change Ethics; World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), The Ethical Implications of Climate Change. 36 Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Negotiating Text: Work of the Contact Group on Item 3 (Geneva: UNFCCC, 2015), paras. 76, 80–87. 37 Glendon, World Made New.

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Arguably, such ownership emerges more strongly on smaller scales, including local government, community groups, companies and NGOs.38 These closer-knit groups help make communityidentification stronger, and the results of their local action can give a sense of achievement that can be lost on worldwide approaches. Equally, some smaller communities may find themselves with little to gain from large carbon emissions, allowing strong norms against high-emission agents and industries to flourish. Pragmatic Perspective The pragmatic approach looks to a future where states decide, ‘I should get behind this norm, as it gets results.’ This stance thus hinges on prior successful initiatives. As such, the continued failures to stem emissions and forge promising agreements prevent this mode of endorsement from attaching to climate principles. Still, it does offer hope for the future, as a moderately successful scheme, or chosen norm, might gradually acquire more advocates on this basis, as nothing succeeds like success. When the shift to climate ethics eventually happens – it might happen fast. Pragmatic, consensual and procedural grounds can suddenly combine with moral, functional, communitarian and deliberative grounds in a perfect storm of moral compliance. The pragmatic success of human rights should also remind us that initially strategic (and even hypocritical) endorsements of a norm can over time acquire institutional presence and genuine effect. Risse and co-authors argue that the ordinary uptake of human rights norms begins with strategic agreements that set in train factors leading to real change.39 Other researchers have noted a similar phenomenon for climate values with respect to corporations initially ‘greenwashing’, but over time being pressured into living up to their professed standards.40 In the terms of the Comprehensive Integrity Framework, the institution initially professes a PIJ as a shallow, publicrelations tactic, but over time the pressures to live up to its claimed values (the context-integrity created by media, NGOs, customers and shareholders) force it to alter its internal make-up (its coherence-integrity) in order to genuinely pursue real results. Conclusion This chapter has surveyed the ways that human rights motivated widespread respect in order to consider the prospects for accomplishing the same result for climate ethics principles. I suggested that for climate ethics much philosophical attention has focused on the ‘objective moral’ perspective, and most practical efforts have aimed at the consensual and procedural outcomes. While these remain vital areas of research and investment, I have suggested alternative ways in which development and promotion of climate ethics can occur. Aspects of the functional, deliberative and procedural perspectives could be pursued through dedicated analysis and practical reform efforts on an international level, while ways of energizing communitarian perspectives locally could be better explored. True, several of the methods (the procedural, consensual and pragmatic perspectives) only acquire substantial force after agreement has been secured and real action has begun. But these 38 Elinor Ostrom, ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’, Global Environmental Change 20 (2010). 39 Risse and Sikkink, ‘Socialization’. 40 Besio and Pronzini, ‘Discourse’.

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perspectives still prove important to our thinking, as they show us how ‘norm cascade’ is possible in the longer term.41 Human rights only began acquiring real international force in the mid-late 1980s – decades after the Universal Declaration in 1948, and even some time after the ratification of the major treaties in 1977. While current prospects for widespread compliance may appear grim, agreements and action can incrementally build support through the same mechanisms employed by human rights, ultimately creating a seismic shift in global moral behaviour.

41 Thomas Risse, Stephen C. Ropp, and Kathyrn Sikkink, eds., The Power of Human Rights: International Norms and Domestic Change (New York: Cambridge University Press, 1999).

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Index (Figures and Tables indexed with bold page numbers) Abbott, Frederick 198 Abdel, Ahmed 198 ‘Ability to Pay Principle’ 13, 122 academics 50, 52, 57, 116, 151, 221 ACC 169, 173–4 accountability 3–4, 19, 26, 95–7, 99–103, 109, 195, 203–4, 207 in global climate policy 96 and governance 191, 210 mechanisms 97 roles that top-down proposals may perform 100 shared 222 Achieving Justice and Human Rights in an Era of Climate Disruption 208 Acts and Regulations Electricity Act 2003 128 Ad Hoc Working Group on Long-Term Cooperative Action under the Convention 34, 34n12, 187n41 Ad Hoc Working Group on the Durban Platform for Enhanced Action see ADP adaptation 39, 44, 46, 48, 51–2, 56–7, 96, 105–6, 108, 110–11, 131–2, 149, 151, 179–81, 183, 187–8, 213–15, 223 actions 45, 183 activities 181 commitments 31, 67 costs 67 efforts 220 funds 116 priorities 118 strategies 108 ADP 22–3, 38, 38n33, 38, 39n36, 39, 44, 45n5, 45–7, 51–2, 54, 56–7, 183n21, 183, 195, 198, 224, 235–6 advocacy groups and research institutions 192 Africa 48, 58, 62, 134, 150, 192, 216; see also South Africa farmers 189 sub-Saharan 117 agencies 45, 52, 134, 136, 206 decentralized 137 multilateral 157 national environment 51–2, 56

ratings 157, 165 agents 25–6, 97, 134, 136–8, 145–6, 194, 227–30, 233 collective 96 external 26 high-emission 236 institutional 132–3 multitudes of 134, 137–8 polycentric 136, 138 agreements 32, 35, 38, 41, 44, 76–9, 81–5, 89, 91–2, 94–9, 107–8, 132, 195, 213, 215, 229, 231–4, 236–7 American Convention on Human Rights (1969) 218 Cancun Adaptation Framework 45, 214–15, 223 climate change 76, 124 Declaration on decolonization 106 Doha Gateway Agreement 38, 214–15 global carbon regime 85 global on climate change 89, 124, 132–4, 158 Kyoto Protocol 13, 23–5, 32–3, 36–7, 41, 44, 46, 49, 56, 59, 83–5, 91, 94, 101, 107, 132, 150, 222 legal 99, 101 longer-term 94 Marrakesh Agreement 77 Montreal Protocol on Substances that Deplete the Ozone Layer 36, 40 multilateral 233 National Action Plan on Climate Change (Indian government) 129 Paris Agreement 97, 183 Protection of Human Rights and Fundamental Freedoms 219 Regional Greenhouse Gas Initiative (RGGI) 134 Rio Declaration 8, 12–13 strategic 236 Sustainable Development Mechanisms Program 57 US Conference of Mayors’ Climate Protection Agreement 134 WTO 77 Alliance of Small Island States, see AOSIS Almassi, Ben 174 Alston, William 169 American Bill of Rights 226 American Convention on Human Rights (1969) 218 Andrea C. Simonelli 213, 224 Annex I countries 36–7, 45, 48, 50–51, 77, 85, 233

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Annex II countries 48 ‘Anthropocene Epoch’ 6, 141–5, 147, 149–53 Anthropocene era, and anthropomorphising nation-states, and institutionalizing all of its citizens 124 anthropocentric attitudes 146 anthropocentrism 142, 145–6 anthropogenic climate change see ACC anthropogenic warming 34, 61 anthropologists 25–6 ANU 89, 200 AOSIS 33–4, 214, 216, 223 ARC 3 architecture 61, 65, 90–91, 127, 163 ethical 123 international 23, 130, 199 of sustainable global governance 163 atmospheric concentrations 63–4, 69 atmospheric damage 213 atmospheric science 204 attitudes 15, 106, 146, 149, 171–2 anthropocentric 146 doxastic 169–70 non-environmental 146 positive 202 pro-environmental 146 Australia 33, 37, 50, 66, 91, 102, 155, 161–2, 173, 203, 234 emissions targets for 2020 102 Garnaut Review of climate change policy 102 and poorer residents 163 and Prime Minister Tony Abbott 202 review of emissions targets 102 Australian Climate Change Authority 102 Australian Coalition Government 103 Australian Human Rights Commission 221 Australian National University see ANU Australian Research Council see ARC Australian Research Council Grant 157 Baer, Paul 93 Baltic States 48 Ban Ki-Moon 203, 210 banks 157, 161 Barber, Benjamin 148 barriers 75–6, 111, 194 BASIC nations (Brazil, South Africa, India and China) 32, 38–42, 49 Bayesian probabilities 175 Bayesian terms 174 behavioural changes 137–8 behaviours 3, 15, 18, 146, 149 actual 25–6 adaptive 117

consistent 142 ethical 114, 148, 224 global moral 237 human 143, 230 individual 138, 143 institution’s 27 negative 3 public 26 beliefs 6, 112, 129, 141, 146, 169–71, 173–6 anthropocentric 146 justified 167, 175 strong 176 systems 146 traditional 106 widespread 67 beneficiaries 10, 12–13, 121–2, 124, 132 ‘beneficiary pays’ principle 12–13, 142 benefits 7, 11–12, 14, 36, 40, 64, 67, 70, 116, 122, 124–5, 128–9, 134, 160, 163, 181–3, 197, 199 of carbon pricing 199 current 12 economic 12, 31, 74 historical 107 inequitable 31 instrumental 180, 182, 186 marginal 9 multiple 135 tax 161 Bentham, Jeremy 158, 165 Bernstein, Steven 233 binding 34, 42, 57, 90, 120, 132–4, 150, 214, 233 climate agreements 207, 210 commitments 41 emission-reduction targets 107 mitigation commitments 32, 36–7, 41–2 mitigation obligations 31–2, 40, 42 biocentrism 145 biodiversity 142–3, 145, 147, 216 ‘blockers’ in the system 57–9 Bloomberg, Mike 199 Bodansky, Daniel 185 Bolivia 66–7 Bonn 46, 51 borders 12, 100, 102, 108, 112–13, 123, 157–8, 185 international 124 national 112–13, 115, 158 bottom-up debates 90–91 bottom-up proposals 4, 90 advocates of 93 Australia’s ‘schedules’ proposal 91 debates concerning 90–91 elements of 90

Index integrity systems 6 nationally appropriate mitigation actions 91 transparency of 99 boundaries 108–10, 113, 137, 143 international 124 of natural extremes 109 Boyd, David 206 Brazil 13, 32–3, 49–50, 57, 91, 94, 125, 189 Breakey, Hugh 3–15, 17–27, 35, 225–37 Brown, Donald 5, 61–71, 225n1 Brundtland Report 78 Burns Weston 206 Bush, George 123n21 business ethics 147, 158 businesses 40–41, 47, 57–8, 65–6, 70–71, 129, 148, 156, 160, 164, 167, 192, 199–200, 210, 226 importing competing 156 sustainable 164 Cadman, Tim 3, 5, 17, 17–27, 43, 43–59 Caldecott, Ben 200 Canada 33, 37, 49, 66, 80, 114 Canada – Unprocessed Herring and Salmon 80 Canberra 102, 111, 156, 160 Cancun Adaptation Framework 45, 214–15, 223 Cancún Agreements (2010) 94 Caney, Simon 12, 14 capitalism 148–51, 165, 171, 200, 206 capitalist growth 6 carbon 14, 45, 106, 110–11, 113, 118, 135, 149, 155–6, 158–63, 195, 199, 223 ‘added tax’ 156, 161–2 budgets 62, 64–5, 110, 162, 195, 201–2 consumption 162 ‘cowboys’ 58 credits 32, 128 global 108 increased in the atmosphere 106 interrelated with human systems 110 markets 155, 162 mitigation 23 pricing 14, 199–200 sinks 110, 163 stocks 46 carbon added tax see CAT carbon budgets 202 carbon debates 130 carbon dioxide 64, 110, 123 concentrations of 123 stabilizing atmospheric 33, 113 carbon emissions 10–14, 48, 107–8, 110, 135, 150, 156, 159, 223

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allocating 11 allowances 10 amount of 11, 14 budgets 64 credits 119 excessive 10 global 156 largest 11, 236 limiting of 11 lowering global 48, 62, 108, 161, 202 penalizing of 199 production of 15 significance of 12 sustainable 163 trading 13–14 carbon governance 106, 113 agreements 118 global 107, 114 ‘carbon integrity system’ 43, 52 carbon regime 74–5, 83, 180 carbon tax alternatives 155 carbon taxes 156, 161–3 carbon trading 14–15, 123, 155–6, 160–61 schemes 156, 160, 162 systems 119, 161 CARE International 183n21, 183 Caribbean states 48 carpooling 135 CAT 156, 159, 161–2 categories 33, 41–2, 50–51, 91, 100, 217, 223 basic 216 blurred 152 of equity 100 least developed country 107 of membership 32, 38–9, 41 of research 217 CBDR 5, 10, 13, 25, 31–2, 35–42, 64, 78, 82–3, 85, 232 climate Instrument policy interpretation of 38 current policy interpretation of 37–9 definition of 32, 42 extension of 82 policy interpretation of 32, 36, 38, 42 principle of 32, 36, 38, 82, 85 CCS 44, 46, 51–2, 54, 56 CDM 21, 23–5, 27, 44–6, 48, 51–2, 54, 56–9 activities 25 coherence-integrity 25 Executive Board 25, 46, 51–2, 56 PIJ 24 project participants 25, 46 projects 58 subcomponents 25

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CDP 107 Centre for International Environmental Law 183n21 Centre for International Tropical Forestry Research see CIFOR CERs 23, 46 Certified Emission Reduction credits see CERs challenges 5, 27, 41, 52–5, 105, 109, 112–13, 131, 136, 142, 145, 148, 185–6, 206, 208 of global climatic change 131 national-level 59 significant development 192 Charlesworth, Hilary 194 Chiapas State (Mexico) 56 children and grandchildren 9, 107, 112, 121, 147–8, 153, 190, 209, 231 China 32–3, 37, 40, 48, 57, 66–7, 79, 94, 122–3, 125, 130, 161, 189 and emissions issues 123 and India 32–3, 40, 48, 57, 122–3 and South Africa 49 Chinkin, Christine 194, 229 chlorofluorocarbons 135 international prohibition of 135 CIFOR 47 CIFs 58 CJN 47 claims 8–9, 11–12, 65, 80, 84–5, 93, 122–3, 157, 170–72, 174, 176, 185–6, 188, 207, 215, 227–8, 235 competing 125 economic 65 empirical 146 equal 10 marginal benefits of 9 procedural 206 public 17 of science 170 Clean Air Coalition 58 Clean Development Mechanism see CDM clean technologies 191, 196–9, 202 Clifford, W.K. 168, 170 climate 12–13, 47–8, 69–70, 91, 96, 105, 108–13, 117, 144, 147–9, 187, 189, 191, 193, 200, 205–8, 210, 214 action 7, 47, 134, 137, 180, 183, 196, 199, 204, 207–8, 234 differential 36 global 135 international 203 agenda 151 agreements 89, 94, 96, 99, 133, 183, 204, 208, 210, 214, 221 challenges 141, 151

changing nature of 113 instable 131 key ethical norms 5 normal 108 stable 110, 116 unstable 105, 107 climate change 45, 187, 221 adaptation strategies 108 anthropogenic 169, 217 approach to 230 avoiding dangerous 64, 89, 95, 207 catastrophic 62–3, 155 causes of 186 combatting of 84, 132, 194 dangerous 61, 63, 67, 69, 92, 135 debate 119–20, 167, 169, 171, 173, 175 economic risks of 199 ethics 8, 230–31, 235 ethics and global 10–11, 121, 123 exacerbated 158 features of 62 framing as a human rights issue 179, 184, 206 growing literature linking with human rights 67 human-made 143 identified as a problem 131 impact assessments 108 implications for the concept of the rule of law 208 initiatives 102 institutions 127, 235 negative human rights consequences of 185 negotiations 36, 93, 183–4, 192, 195 norms 225–37 norms remain in their infancy 225 objectives 75 policies 10, 61–2, 64–6, 68, 82, 124, 130, 135, 199, 231 base 69 ‘bottom-up’ approach 90 developing national 65 domestic 68 formation of 61 national 61–2, 64–6, 69–70 ‘top-down’ approach 90 policy formulation 61–71 principles 235 processes 3 projections 117 reconceptualizing 189 regime 4–18, 20, 32, 34, 36, 38, 40, 42, 44, 46, 48, 73–4, 82–4, 92–4, 100–102, 180–82, 186–8, 204 risks 124, 202

Index scepticism 167, 172–3 scholars 74 women’s economic contribution 194 Climate Change Secretariat see CCS Climate Convention 58, 223 climate ethics 7, 91, 225, 230–31, 236 discourse 233 norms 225, 234 principles 232, 234, 236 principles of 7 promotion of 236 ‘Climate Fairshares’ website 101 Climate Innovation Centres 197 Climate Instrument (2020) 31–5, 37–9, 41 climate integrity 190–91, 195, 203, 210–11 contextual 203–4 global 25 system capable of functioning effectively 6–7 Climate Integrity Workshop 176 Climate Investment Funds see CIFs climate justice 3, 6–7, 47, 66, 69, 95, 189–97, 199, 201–11, 223–4, 234 achieving 204, 207 agenda 200 approach 205 debate 222 national 64 transformed 208 Climate Justice now see CJN climate law 191, 193, 214–15 climate mitigation 233 climate policies 36, 61–2, 82, 89–91, 93, 99, 193–4, 208, 223 gender-informed 193 global 91–3, 96, 98, 103 national 63, 65–6, 68 climate politics 191 climate principles 34, 225, 232, 236 functional 232–3 functional mid-level 235 and moral values 7 and values coherence 34 climate regime 5–7, 26, 31, 38–9, 43–5, 47, 49, 51–3, 57–9, 89–90, 93–4, 101, 103–4, 132–3, 176 actors 141 applications 21 complex 17–27 consistency-integrity of 89, 176 evaluating the integrity of 17–27 global 5, 21, 31, 33–5, 37, 41, 61, 84, 89–90, 105, 131–4, 136, 138, 148, 222, 226 international 41, 132, 211

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over-arching of 21 climate-related risks 109 climate risk assessment 199 Climate Technology Centre and network see CTCN CMP 25, 44, 46, 51–2, 54, 56 CO2 emissions 40, 62, 64, 94, 109–11, 118, 144, 150 Coady, David 6, 167, 167–76 Cohen, Ken 202 collective action 125, 211, 233 commitments 35–6, 41, 46, 65, 67, 70, 75, 90, 94, 127, 129, 132, 183–4, 186, 193, 198, 203–4, 233–4 aggregate 41 binding emission reduction 31 consistent 235 economy-wide emission-reduction 38 enhanced 38 honourng of 113 international 130, 180 national 61, 66, 69, 94 sector-wide emission-reduction 38 Common But Differentiated Responsibility see CBDR communitarian perspective 235–6 communities 19, 26–7, 80, 96, 117, 148, 165, 189, 191, 194, 205, 207, 211, 220, 228–9 biotic 145 climate-resilient 195 of nations 80 values of 18, 26–7, 148 compensation 131, 214, 216, 224 ‘comprehensive integrity framework ‘5, 17–32, 136, 176, 186, 225, 236 concentrations 21, 40, 110 atmospheric 64, 69 atmospheric GHG 63, 69 of carbon dioxide 123 increasing 105 stabilizing CO2 equivalent 64 concepts 4–5, 8–9, 13, 18, 27, 53–4, 58, 66, 69, 82, 85, 117, 124, 147, 158, 169, 208, 217 classical 142 disjunctive 173 economic 12 fundamental human rights 180 invoking 126 of the licence to operate 158 normative 147 Concepts of Epistemic Justification 169 Conference of Parties see COP consistency-integrity 18, 133 achieving 95, 104, 187 display 19 factors stymying 133

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institution’s 19–20, 74, 133 regime’s 20 sub-institution’s 20 consumer capitalism 148–9 context-integrity of the global carbon regime 19, 24, 73–86 ‘contraction and convergence approach’ 91, 101 contribution of human rights 179–87 contributions 82, 89–90, 94, 96–8, 101, 134 aggregating 97 determined 94, 235 GHG emission 41–2 historical 32 intended 97 national 92, 96–7, 99, 101–2 review of mitigation 96 Conventions 21, 23, 25, 32–5, 38, 40–41, 43–4, 46–8, 57–8, 92–3, 95, 97, 99, 187, 205, 207, 215–16, 219 COP 21–3, 25, 32–3, 43–8, 52, 56–7, 106, 124, 133, 136, 150, 187, 193, 205, 213–16, 232, 234–5 decisions 34 developments 21 negotiations 216 Copenhagen Accord (2009) 91, 94, 97 Copenhagen/Cancún arrangements 94, 98 Copenhagen negotiations 209 Cordes-Holland, Owen 220 core concepts of institutional integrity 17 corporate social responsibility 158 Correa, Carlos 197 Coulter, Liese 6, 105–18 countries 11–13, 37–9, 42, 45–6, 48–50, 52, 61–2, 66–7, 69–71, 74–5, 89–94, 96–9, 101–4, 122–30, 156–7, 159–61, 223–4, 232–3 donor 58 high-emitting 62 host 222 incentivizing of 123 industrialized 23, 39, 42, 46, 48 less-developed 156, 160 low-emitting 159 neighbouring 112 non-western 160 poor 15, 32, 71, 120, 123–4, 127, 190, 197 rich 71, 120, 122, 127, 148, 163, 189 credits 23, 46, 56, 190 crops 112, 142, 149, 163 CTCN 46, 51–2, 54, 56–8, 197 current global deadlock 135–6 damages 10, 12, 66–7, 69, 117, 199, 214–15, 217, 222, 224 environmental 11–13

irreversible 214 long-term emissions 213, 222, 224 potential 222 Dawkins, Richard 174 deadlock, current global 135–6 Deane, Felicity 73–86 death duties 163 debates 31, 35, 68, 98, 125–6, 131, 167, 179, 181, 184, 190, 197–200, 203, 205, 226, 228 on climate change 119–20, 167, 169, 171, 173, 175 concerning carbon 130 ethics and governance in climate change 119–30 top-down 94 decarbonization, goal of 40, 203 decision-making 5, 7–9, 96, 99–100, 106, 118, 127, 129, 187, 191, 194 authority 4 bodies 23, 133 procedures 95 processes 7, 95, 99, 116, 188, 195, 234 decisions 19, 27, 34, 38, 46, 74, 77, 79, 81, 94, 97–9, 143, 147, 155, 187–8, 190, 214–15, 234 authoritative 98 change-related 187 dispute settlement 79 draft 214 formal 234 ministerial 77 political 98 short-term 108 value-sensitive 132 Declaration on Climate Justice 7, 190–91, 195–6, 199, 203–4, 207, 210–11 Declaration on Decolonization 106 delegates 47, 51–2, 56–7, 192 derivatives 159, 161 derivatives debacle 157 Designated National Authority see DNA Designated Operational Entities see DOE developed countries 31, 35–42, 45–8, 50, 56–7, 66–7, 71, 77, 82, 89–91, 93–4, 107, 160, 163, 192, 197–8, 230–31, 234 claiming they have no obligations to live within the emissions reduction targets 66 high-emitting 67 informal collection of 49 least 42, 48, 107, 115 peaking of targets should be aspirational 40 poor 66, 69 vulnerable 215 developed/industrialized countries 42, 48 developing country G–77 bloc 215

Index development agenda 195, 205, 207, 210 Dietz, Thomas 135, 137 differential obligations within the global climate regime 31 disaster risk management 214 disaster risk reduction see DRR disasters 9, 117, 119, 144, 152, 214, 217 change-related 144 natural 113, 115, 152, 192 prevention of 51, 56 disastrous situations 128 displacement 214–17, 224 climate-induced 219 forced 214, 217 induced 214 disputes 76, 78, 80–81, 93, 226 Canada – Unprocessed Herring and Salmon 80 innefective settlement mechanisms 77 US–Shrimp 78, 80, 82 WTO 82 distributing carbon emission allowances 10 distribution 10, 40, 70, 99, 111, 163 global 111 patterns 128 of power 111 preferred 231 regional 100 shifting species 105 distributional, effects 163 distributional inequities that arise when the poor have limited scope to influence policies 70 distributive ethics among states 125 distributive justice 64, 67, 86, 132, 134, 156, 232 divestment campaigns 200–202 DNA 25 DOE 25 Doha Amendment 37 Doha COP negotiations 38 Doha Gateway Agreement 38, 214–15 Douglas, David M. 3–15 doxastic attitudes 169–70 drinking water 62, 205 droughts 48, 62, 112 DRR 144, 216 Durban Platform for Enhanced Action 23, 34, 38–9, 44–6, 94, 99, 183, 195, 198, 207, 221, 224, 235 duties 9–10, 12–13, 71, 98, 145–6, 151, 158, 163, 167–9, 171, 185–6, 222 common 10 death 163 imperfect 168 intellectual 168

273 legal 63 moral 151 negative 170 prioritizing 145 remedial 12

early enlightenment theories of natural rights 226 Earth Charter 158 Earth Summit 32 Earthjustice 183n21 earthquakes and tsunami 152 eco-centrism, as an integral element of the ethical system 141 eco-ethics 145–6 eco-fascism 145 ecological catastrophes 159, 215 ecological footprints 40 ecological priorities 151 ecological realities 148 ecological surprises 109 ecological systems 62–3 economic growth 67, 82, 86, 108, 148 economic incentives 155, 160 economic interests 65–6, 68–9, 164 economic losses 144, 215–16, 218, 224 direct 216 indirect 216 long-term 216 economic risks of climate change 199 economic systems 106, 109, 111, 113, 149, 195, 201, 203, 215 global 110 economic vulnerability index see EVI economies 6, 32, 48, 108, 113, 148, 159, 230–31, 233 advanced 207 current high-emission 231 extractive 147 fast-growing 122 greed-driven 144 green 149, 196 local 149 low-carbon 102, 159, 191, 196, 200–201 organic 147 economy in transition see EIT ecosystem adaptation 33 ecosystems 21, 33–4, 108–9, 143–5, 147, 191, 213 education 115, 146–7, 151, 200 ego-centric ethics 145 ego-centrism, concerning the planet 145 EIT 48 Electricity Act 2003 128 Elga, Adam 174

274

Ethical Values and the Integrity of the Climate Change Regime

emerging economies 94, 189 emerging polycentric systems 134 emission entitlements 11 emission reduction credits 46 emission reduction units see ERUs emission rights 84, 160, 162 emissions 10–15, 24, 32–3, 36–8, 45–8, 62–4, 66–7, 71, 93–4, 101–2, 119, 121–5, 129, 133–4, 160, 185–6, 223, 231 absorbing anthropogenic 110 carbon dioxide 128 current 93, 107 direct 135 equivalent 64 increasing 149 large-scale 233 limiting 234 lowering 199 luxury 11, 123 national GHG 70 nationwide 123 pre-1990 35 reducing 14–15, 45, 47, 107, 126, 129 significant 11 subsistence 123 total annual 32, 37, 158, 160 unrestricted greenhouse gas 186 zero net by 2050 40 emissions reductions 45, 48, 59, 62–5, 69, 89 increased 58 national 70 targets 66–7, 102 emissions targets 63–4, 69–71, 84, 102, 133, 162 emissions trading 14–15, 25 alienates responsibilities 14 international 75, 84 markets 45 schemes 14, 45, 75, 161 emitters 14, 32, 122, 160, 162 heavy 12 highest 11, 125, 162, 186 low 11 major 32, 42, 122–3, 224, 234 employment 190, 230 energy 57, 123, 148, 159, 190, 196, 203 accessing of 202 carbon-intensive 108 renewable 130, 153, 197–8, 200, 202 energy companies 202 energy efficiency 130, 147 energy facilities 188 energy resources 7

energy sector 58 enterprises 126, 128 collaborative 176 medium-sized 128 environment 8, 15, 17, 19, 22–4, 26, 77–8, 80, 82–3, 106–7, 123–4, 137, 145–6, 189–90, 197–8, 200–201, 206–7, 223 challenges 135, 151, 206 clean 143 current global 6 dynamic operating 115 eco-centric 141 economic 27, 190, 204 international 6, 232 non-human 145 resource-constrained 113 social-epistemic 176 stable operating 106 environment change 106, 135, 143 Environment Integrity Group 48 environmental agreements 31, 78, 81, 83–4 environmental degradation 31, 106 environmental disasters 152 environmental ethics 145–6, 184 environmental impacts 78, 180, 187 environmental law 79, 206 environmental pathologies 146 environmental policies 75, 79, 147 environmental preservation 82 environmental protection 75 environmental sociologists 146 ‘epistemic norms’ 6 epistemology 167, 169 equality 132, 142, 147, 180, 187–8, 203 Equator Principles 158 equity 7, 10, 34, 36, 64–6, 69–70, 82, 89, 91, 93, 95, 99–100, 118, 124–5, 128, 152, 187–8, 190 benchmarks 90 distributional 95, 99 framework 66 inter-generational 202, 232 justifications 184 perceived 95 ERUs 46 ethical dimensions 69, 111 ethical duties 63, 66, 70 ethical evolution 142 ethical obligations 61–2, 65–70, 145 ethical pivots of climate change debate 120 ethical pluralism 125 ethical principles 4, 31, 69–70, 120, 124, 151, 187, 232 ethical questions 4, 61, 63, 156

Index ethical responsibility 66–9, 213–15, 217, 219, 221–4 ethical standard setting 156 ethical standards 114 ethical theories 4, 120, 124, 231 ethical values and global carbon integrity system 5, 7, 9, 11, 13, 15 ethics 3–5, 8–10, 14–15, 17, 25, 61–2, 64–6, 68–70, 111, 114–15, 119, 121, 123, 125, 127, 142, 165, 191 applied 4 eco-centric 8, 141, 143, 145, 147 of global good citizenship 152 ignoring of 65 and infrastructure issues 115 and justice in climate change policy formulation 61–71 sustainability 147 and values in the comprehensive integrity framework 25 ethics and governance in climate change debate 119–30 EU 32, 37, 49, 59, 133, 235 Europe 134, 229 European Union see EU Everybody Matters: My Life Giving Voice 189 EVI 107 exceptions 5, 79–81, 167, 174 environmental 79 partial 96 second GATT 80 executive committees 215, 224 experts 151, 174–6, 232 Exxon 202 Exxon Mobil 202 false beliefs 168–9, 171, 173 farmers 57, 189, 192–3 farming 47, 57, 163, 192 FCPF 46, 51–2, 56–7 FENCO 58 Fifth Assessment Report (AR5) 92, 100 financial crisis 157 financial resources 111, 198 financial support 46, 197 financing mitigation 45 First World War 106 flooding 117, 180 backyard 165 flash 111, 189 significant 117 widespread 117 food 21, 33, 43, 112, 148, 163, 165, 179–82, 190–92, 196, 204–5, 208, 217, 220

275

availability of 43 growing of 163 importing of 220 production of 21, 33 securing of 163 security of 33, 190–92 wastage 192 Forest Carbon Partnership Facility, see FCPF forest management 45–7, 57, 181 forests 32, 46, 181 Fossil Energy Coalition see FENCO fossil fuel divestment 200, 202 fossil fuels 48, 148–9, 153, 189, 201–3, 209 combustion 143 companies 200–201 countries 48 divestment movement 189, 191, 199–204 emissions 56 replacement of 202 reserves 196, 201 subsidies 202 fossil reserves 201 Foundation 79, 105, 190–91, 193–6, 198–9, 201, 210 Fourth Assessment Report (AR4) of the Intergovernmental Panel on Climate Change 33 Fourth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (1963) 219 framework 5, 17, 21, 27, 70, 77, 91, 101, 114, 116, 118–20, 124, 127, 179, 182, 185, 205 agreed normative 114 ambitious global 210 contraction and convergence 70 cost–benefit 70 effort-sharing 96 equity reference 101 ethical 119–20 global carbon 83 of global carbon regime 127 of human rights 205 institutional 83 international 128, 191 normative 35 regulatory 81 spiritual 149 targeted policy 130 theoretical 121 Framework Convention on Climate Change 133 free-ride, incentives to 124, 233 free trade 74, 78 French Declaration of the Rights of Man 226 freshwater 143 see also water

276

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Fukuyama, Francis 150 funds 45–6, 48, 58, 66, 69, 164, 194, 198–9 donor 46 endowment 201 individual 58 multilateral 58 pension 203 sovereign wealth 200 Garnaut Review 102, 173 gases 132, 186, 201–2 GATT 76–83, 85 exception provisions 81 and the new agreement 77 obligations 81 preamble 78 GCF 45, 58, 197–8 GCP 110–11 GDP 163 GEF 45–6, 51–2, 54, 56, 58 gender 190, 193–5, 204–5 blind climate policy 194 dimensions of climate change 193 equality 193, 195, 207 inequalities 194 justice 195 responsive approach 195 General Agreement on Tariffs and Trade see GATT Geological Time Scale 144 GHG emissions 144 GHG concentrations 33, 109, 132, 223 limit atmospheric 63 stabilizing 84 GHG emission contributions 41–2 GHG emissions 48, 63–6, 69–71, 106, 138, 224 calculating national allocations 70 for each nation 75 global 40, 47, 64, 66, 69 global levels 64 historical records of 71 national allocations 70 pricing of 84 reduction commitments 63, 67 reduction targets 65, 67, 69, 222 share of safe global 63, 69 GHG inventories 52, 56 GHG mitigation 134 Gilmore, Eamon 192 Glasgow University 200 Global Alliance for Clean Cookstoves’ Leadership Council 197 Global Carbon Project see GCP

global carbon regime 4–8, 11, 13, 73–5, 77, 79, 81–6, 126–7, 142–3, 151, 179–81, 183, 185–8, 225 global climate integrity system 7 global climate regime 5, 21, 31, 33–5, 37, 41, 61, 84, 89–90, 105, 131–4, 136, 138, 148, 222, 226 global community 6, 32, 62, 64, 196 global connectivity 112 global development 86, 192, 210 global distribution problems 163 global economic changes 32 global emissions 32, 37, 64, 94, 130 Global Environment Facility see GEF global financial crisis 22, 32, 155–6, 160, 162 global governance 102, 106, 113, 130, 153, 155, 157, 163 global institutions 133 global integrity regime 4, 27 global mobility 112 global taxation 163 global temperatures 110, 132, 144, 172, 190, 210 global warming 34, 39, 41–2, 62–4, 66, 110, 222 Global Warming Solutions Act (2006) 56, 134 threat of 199 Global Warming Solutions Act (2006) 56, 134 globalization 122, 124, 142, 148–9, 157–8, 163 goals 5–6, 15, 17, 20, 34, 115, 118, 127, 130, 132, 136–7, 168–9, 187, 190, 213, 224, 226–7, 230 atmospheric GHG concentration 63 atmospheric stabilization 64 collective 20, 62 explicit 116 fundamental 106, 226 global warming limit 63 ideological 229 institutional 75 long-term global 34, 41, 223 over-arching 19–20 public institutional 6 temperature 34, 39 Goldman, Alvin 169, 174, 176 Goods and Services Tax see GST governance 4, 18, 25–6, 105–7, 109, 111, 113–15, 117– 19, 121, 123, 125–7, 129–30, 136, 157, 165 architecture 117–18 arrangements 5, 29, 43, 155, 192 corporate 157 councils 221 economic common-pool 114 frameworks 114 goals 106, 108 institutional 110 long-term 118

Index mechanisms 59, 117–18, 214 national 157 problems 155, 157 professional 155 structures 106, 119, 141 systems 106, 109, 113 governments 3–4, 58–9, 65, 68, 99–104, 106–7, 117, 123–4, 128, 133–4, 147, 150, 152–3, 162–3, 181, 185, 197–8, 218–19 accountable 3 continuous autonomous 222 current 66, 69 displaced 221 efficient 150 federal 117, 134 integrity of 123 local 47, 66, 69, 116–17, 136 national 70, 91, 99, 101–2, 220–22 power of 150 pre-empting of 99 regional 67 responsibilities of sub-national 65 state 116 sub-national 65–7, 70–71 traditional state 219 Goyal, Yugank 119–30 grandfathering 10–11, 162 of emission rights 162, 223 moderate 233 schemes 11 Grear, Anna 205, 206n152 Green Climate Fund see GCF ‘green governance’ 206 Green Governance 206 Greenhouse Development Rights framework 91–3, 101–2 greenhouse gas concentrations 22, 132 greenhouse gas development rights 70 greenhouse gas emissions 34, 189, 201, 207 greenhouse gases 21, 46, 62, 74, 105, 186, 213 global 321 reducing of 89, 147 terrestrial 45 Greenpeace International 183n21 ‘greenwashing’ 236 gross domestic product see GDP growth 9, 47, 128–30, 142, 149 capitalist 6 green 7 industrial 222 low-carbon 201 measured 110

277

GST 163 Guzman, Andrew 199 habitats 142 environmental 116 human 213 Hadley Climate Research Unit 175 HAI 107 Haites, Erik 89 Halley, Edmund 172n12 ‘hard’ law 142, 151 hazards 111, 115, 152, 216 health 43, 79–80, 107, 110, 141, 159, 179–83, 196, 204–5, 208, 216 human 112 negative human 144 of the planet 190 public 183, 199 Heat 153 heatwaves and droughts 180 high-carbon assets 202 high-emission agents and industries 236 High Level Advisory Committee to the Climate Justice Dialogue 191 historical emissions 10–13, 70–71, 122–3 Holocene period (last 10,000 years) 143, 149 Howes, Stephen 89 Human Assets Index see HAI human habitation 218 human impacts of climate change 182, 184–5 human rights 7, 26, 35, 67–8, 143, 159, 179–91, 194–7, 203–10, 213, 217–19, 221–2, 224–33, 235–7 activism 225 American Bill of Rights 226 applicability of 180 approaches to climate change 180, 203, 205–6 assessment of impacts 188 committees and tribunals 67–8, 221 ‘communitarian grounding of’ 229 compliance 67–8, 231 compliance pull of 184 context of 230–31 contribution to the effectiveness and integrity of the global carbon regime 179 current international instruments 229 effects of climate change 183 French Declaration of the Rights of Man 226 harnessing the moral and normative weight of 179 history 234 impacts of climate change 179–80, 186, 188 implementing of 143 implications and moral imperatives 70

278

Ethical Values and the Integrity of the Climate Change Regime

incorporation of 226 internal coherence of 206 and international law 185, 187 language of 182 law 7, 67, 179–80, 182–5, 187–8, 203, 217 legal conceptions of 229 legitimacy of 227 limiting 183 linked with climate change morally and institutionally 7 major theories of 227 moral foundations of 187 movement 7 non-economic 217 norms 7, 225, 228, 230, 233, 236 objectives 187 obligations 7, 67–8, 182 philosophical theories of 225 practices 5, 7, 228 principles 7, 179–80, 182–4, 186–9, 205 problems 182, 206 procedural 188 proponents 225 protections 67, 183 social constructivists theories of 229n15 special historical ownership of 235 state’s violations of 226 terms 183 theories of 227–8 treaties 68 Universal Declaration of Human Rights 226, 229, 232, 235, 237 violation of 185–6 Human Rights and Climate Change 205 Human Rights and Climate Change Working Group 215, 221–2 human rights-based approach to climate change 180 Human Rights Council (2014) 191, 204–5, 221 human rights principles, application of 186–7 human rights principles effects of 186 human values and purposes 26, 159 humanitarian principles 105, 113–14 humanitarian values 113–15, 118 Humphreys, Stephen 67n12, 203, 207 ICCPR 180, 180n4, 181n9, 181, 183n24, 183, 185, 185n34, 185, 187, 187n43, 187–8, 188n45, 220, 220n31, 220 ice floe, melting 185, 189 ICESCR 180–81, 187 IEA 47, 201–2 IGOs 45, 47, 52

Centre for International Tropical Forestry Research (CIFOR) 47 International Energy Agency (IEA) 47 Organisation for Economic Cooperation and Development (OECD) 47–8 IISD 114 IMF 76, 107, 202 incentives 199, 221 for climate change 129 for countries to increase their populations to gain greater emission allowances 11 for developing countries to reduce emissions from forested lands 47 distorted 111 economic 156 financial 45 for governments to overlook the rights of indigenous people 181 long-term 162 most effective 199 perverse 160 for polluters to emit less carbon 15 to reduce emissions so that polluters have to buy fewer permits 14 for reducing greenhouse and other emissions without affecting inflation 162 short-term 164 special 197 to those who can most efficiently cut their carbon and minimize the cost 160 India 32–3, 37, 40, 48–9, 57, 94, 122–3, 125, 128–30 and Brazil 125 and China 32–3, 40, 48, 57, 122–3 and the United States 32 Indian Government’s National Action Plan on Climate Change 129 Indian Ocean 217 indicators 91, 96, 109–10, 129, 146 of beliefs 146 individual 101 preferred 96 quantitative 92 social 106 stable 110 indigenous peoples 59, 181, 187, 189, 195, 208, 218 individuals 62, 71, 119–20, 122, 124–7, 147, 149, 153, 155, 159, 161–4, 185, 187–8, 205–6, 216–17, 219–21, 224, 226 dignity of 95 encouraged 66, 70 hard questions 163 high-emitting 71

Index multiple roles of 163 treatment of 226 Indonesia, and South Africa 94 industrial growth 222 industries 47, 58, 158, 161–2, 201, 236 carbon-intensive 108 fossil fuel 200, 202 fuel-intensive 107 high-carbon 162 no-carbon 156 tobacco 201 traditional 149 weapons 152 inequalities 9, 11, 196, 201, 204, 222 acute 152 global 12 intra-country 91 inflation 161–2 infrastructure 45, 117, 199–200, 216 inadequate 111 planning 110 repairs 112 vulnerable 116 injustice 133, 182, 191, 201, 204, 206, 234 of climate change 182 environmental 151 innovation 153, 196–7 institutional design 128 institutional elements commented on by interview subjects and their public institutional justification 46 institutions 17–21, 23, 25–7, 33–4, 43–5, 52, 56–7, 73–5, 85–6, 91–2, 126–7, 131–4, 136–8, 141–2, 150–51, 156–8, 164–5, 187 educational 200 faulty 127 given global climate 27 individualized 127 international 73, 79, 86, 107 multilateral 198 national 138 national governance 157 official watchdog 4 over-arching 106, 136 polycentric 136 private 153 scientific 172 single-purpose 136 supranational 124 transparent 147 weak 111

279

integrity 3–5, 17–19, 24–6, 33, 49, 52–5, 73–4, 85, 103–4, 119–20, 126–7, 131–8, 141–2, 147–8, 153, 163, 179–80, 186–8 challenges 49, 52–3, 55–6, 58–9 compromised 112 concepts 18, 31, 52–3, 56 embedding 127 of emerging polycentric systems 134 environmental 195 evaluating 43 global climate regime’s 138 of global governance 113 individual 138 of international institutions 26, 73 social 110 Integrity map of Clean Development Mechanism (CDM) 24 Integrity map of UNFCCC/climate regime 22 integrity systems 3, 5–7, 20, 24, 26–7, 43, 52, 89, 105, 111, 113–14, 127, 142, 158, 163 complex 6 explicit 114, 117–18 framework of 4, 43 functioning within a larger context of institutions and regimes 5 global 4, 6, 118, 156, 165 multi-stakeholder sustainability 147 national 20, 74, 91, 95, 156, 165 Intellectual Property see IP intellectual property rights see IPRs inter-generational equity, achieving of 202 Intergovernmental Panel on Climate Change, see IPCC international adaptation funding 116 international agreements 3, 13, 85, 96, 111, 118, 130, 135, 210 International Bank for Reconstruction and Development (The World Bank) 24, 46, 57, 67, 76, 109 International Bar Association 197, 208 international climate talks 3, 13, 43, 85, 90, 96, 111, 125, 128, 130, 135, 190–91, 195, 197–8, 207 international community 6–7, 61, 63, 67–8, 120, 122, 219–20, 234 international cooperation 75, 91–2, 94–6, 104 International Covenant on Civil and Political Rights, see ICCPR International Energy Agency see IEA international environmental law 83, 95 International Institute for Sustainable Development see IISD International Monetary Fund see IMF international river basins 117

280

Ethical Values and the Integrity of the Climate Change Regime

International Skeptics Society 170 international trade 35, 74–5, 77, 81, 84–5, 130, 220 escalating 77 free 75, 84 regulating 76 regulations 77 relations 108 rules 74, 77 unfettered 74 International Trade Organization see ITO interviews 50, 53, 200, 204 face-to-face 49 key informant 43 locations for conducting 51 questions 49 subjects 45–6, 48, 50, 51 investments 48, 118, 128, 148, 159, 162, 164, 192, 201–3, 236 avoiding high-carbon assets that become obsolete 199, 202 CDM project 48 encouraged grandfathered trading schemes 156 of energy 159 fossil fuel 200 profitable 156 significant 116 investors 58, 155, 158, 164–5, 200 IP 77, 191, 197–9 IPCC 33–4, 46, 51–2, 54, 56–7, 59, 62, 64, 70, 91–2, 95, 100, 103, 111, 132, 176, 180, 232 assessment to limit global warming in this century to below 1.5°C 40 criteria using procedural equity 95, 103 report released in 1992 71 Task Force on National Greenhouse Gas Inventories 46 taxonomy 95–6 TFB 56 typology 95 IPRs 197–8 Iraqi refugees 112 ISO 4000 158 ITO 76 James, William 167–71 Jamieson, Dale 119 Japan 33, 37, 49–50, 58, 107, 148 JCM 58 JI 45–6, 51–2, 54, 56–8 JISC 45 Joint Crediting Mechanism see JCM Joint Implementation see JI

Joint Implementation and Emissions Trading 25 Joint Implementation Supervisory Committee see JISC judges 17, 136–7 reliable 175 unreliable 176 justice 5–6, 9–11, 35, 61–2, 64–6, 68–71, 82, 84, 120, 123, 125, 130–31, 151–2, 187–9, 193, 203–8, 210, 230 considerations 61, 65–6, 69 environmental 204 failures 61, 68 global 130, 151, 232 including compensatory 70 intergenerational 8–9, 189, 209 natural 27 obligations 61–2, 65, 67–8 outcome-based 95 principles 61, 65, 82, 120, 131, 188, 231 procedural 26, 95, 192, 195 Justice for Future Generations 206 justification 13, 18, 74–5, 77, 89, 97–8, 131, 136–7, 146, 183, 225, 227 common 137 economic 70 ethical 7, 38, 184 national 65 pragmatic 11 public 137 Kaufmann, Daniel 109 Keck, Margaret E. 100 Kelly, Thomas 174 kerosene 128 kerosene subsidies 128 Ki-Moon, Ban 203, 210 Kiribati 217 Klein, Naomi 149–50, 200, 206 knowledge 10, 110–11, 121, 157, 160, 162, 167, 169, 175, 191, 215, 221 asymmetric 155, 161 contemplative 171 cultural 117 genuine 172 greater 157 human 172 indigenous 115 local 193 osmosis 122 knowledge acquisition of 167, 172 Kyoto Model 38–9, 44, 56, 107, 223 Kyoto Protocol 13, 23–5, 32–3, 36–7, 41, 44, 46, 49, 56, 59, 83–5, 91, 94, 101, 107, 132, 150, 222

Index land 110, 143, 163, 181, 217–21 ancestral 221 forested 47 losing habitable 217 national 217 surface 143 ‘land ethic’ 145 law 3–4, 18–19, 61, 65, 74, 76–7, 79–80, 106, 109, 114, 116, 151, 162, 183–5, 206–8, 217, 219, 227–8 ‘hard’ 142, 151 ‘soft’ 142, 151, 229 Lawrence, Peter 206 League of Nations 106, 218 Lebanon 112–13 legal duties 63, 67 legal processes 106, 188, 207 legitimacy 92, 95, 97, 118, 151, 227–8, 234 ethical 158 of global governance 18, 74, 126 of international governance 95 of international regimes 151 Leopold, Aldo 145 Levine, Madeline 148 Lewis, Bridget 179–88 ‘liberal environmentalism’ 233 lifestyles 6, 155, 159, 189 acceptable 11 high-carbon 156 transforming of 153 Lima Conference 234 list of interview questions 49 list of interview subjects by country 50 list of questions and their relationship to integrity concepts relative to overall regime 53 Locke, John 171, 227 loss 45, 62, 67, 114, 116–17, 144, 148, 188, 213–19, 222–4 of bio-diversity 144 compensating 224 irreversible 224 long-term 215, 217 newly developed 224 non-economic 213 rights-based 217 of subsidies 148 unacceptable 116 ‘loss and damage’ 7, 44, 213–15, 217, 219, 221–4 low-carbon economies 102, 159, 191, 196, 200–201 low-carbon growth 201 low-carbon industries 156, 158, 162 low-carbon lifestyles 155, 159–60 low-carbon paths 47 low-carbon practices 162

281

low-carbon production 196, 201 low carbon products 162, 199 low-emission development strategies 40 lowering global carbon emissions 48, 62, 108, 161, 202 macro-economic postulates 147 Maguire, Rowena 3–15, 31–42, 181–2 Major Economies Forum 58 Malawi 193 Maldives 182, 217, 220 management 111, 113, 220, 223 efforts 116 poor water 112 scientifc paradigm 115 sustainable 46 Marrakesh Agreement Establishing the World Trade Organization 77 Marshall Islands 182, 209, 217 Mary Robinson Foundation 189–99, 201, 204, 207–8, 210–11 Massie, Bob 200 McAdams, Jane 219 MCII 216 McKibben, Bill 200 mechanisms 22–3, 44, 46, 49, 57–8, 66, 68, 75, 84, 100–101, 105–6, 108–9, 131, 133–4, 136, 215, 217, 223–4 binding 134 co-financing 128 economic 199 flexible 24–5, 56, 59, 75, 84 formal 66–7, 69 institutional 214 international 198, 214 multi-pronged 214 multilateral 97 post-Kyoto 45 Mekong Basin 52, 56 melting ice floe 185, 189 Mexico 42, 48, 50–52, 56 migration 43, 214–15, 220, 224 mitigation 31, 39, 41, 44, 89, 92–3, 100, 111, 118, 127, 131, 134–5, 137, 181, 183, 187, 194, 213–15 actions 40, 44, 94, 183 activities 45–6, 181 ambitions 39 commitments 37, 40–41 contributions 96 costs 93, 100, 102, 125 efforts 127, 134 global 136 national 90

282

Ethical Values and the Integrity of the Climate Change Regime

sharing 95, 103 sharing climate change 93 measures 141, 179–80 obligations 35, 40, 207 policies 92 strategies 124, 188 mitigation targets, options for mitigation in the form of 41, 103, 134 mitigation timing, options for differentiation in 40–41 Mlambo-ngcuka, Phumzile 194 modern international law 218 Monbiot, George 153, 172 Montevideo Convention (1933) 218 Montreal Protocol on Substances that Deplete the Ozone Layer 36, 40 moral arguments 228, 235 moral commitments 18, 226 moral principles 227 moral problems 7, 131, 133 moral theories 4, 25–7, 230–31 moral values 5, 7, 26–7, 131 morality 26, 127, 131, 137, 235 descriptive 25–6 normative 26, 224 motivations 3, 146, 227 granular individualistic 127 limited 92 movement 157, 180–81, 201 anti-apartheid 200 climate denial 200 internal 217 mass 149 popular 200, 202, 208 social 201, 209 strong political 173 youth-led 201 Müller, Benito 96 multifaceted structure of integrity systems 27 multiple rights 213 Munich 216 Munich Climate Insurance Initiative see MCII Munich Re Insurance Initiative 216 Murray, Eliza 89n1 Narashima, Rao 128 nation, climate change austerity 126 nation-states 62, 73, 75–7, 82–4, 106, 113, 118–20, 122, 124–7, 130, 157, 205, 207 anthropomorphising 124 authoritative 6 behaviour of 119, 130 driving their emissions 124

to individuals 119 National Action Plan on Climate Change (Indian Government) 129 national adaptation programs 45 national boundaries 63, 113, 117, 122, 215 National Greenhouse Gas Inventories Programme (IPCC–NGGIP) 46 national income and emissions 101–2 national integrity systems 3–4, 91, 95 nationality 214, 217–19 heredity-related 221 new 218 ‘nationally appropriate mitigation pledges’ 42 nations 32, 61–71, 75, 105–9, 111, 113, 115–16, 119, 122, 124–5, 165, 213–14, 216, 218–20, 222–4, 228–9, 232, 234 developed/industrialized 32 ethical considerations 64 outsider Kyoto 32 poor 67, 119, 124, 222 process of anthropomorphising 125 Nature’s Trust 206 negotiations 13, 23, 31–2, 45, 50, 52, 56–7, 76–7, 79, 100, 119, 143, 204, 209, 214–15, 232 failed 125 forestry 45 international environmental 31, 70, 75–6, 130, 233 multilateral 75, 98, 102 regime-related 51 stymieing of 234 negotiators 45, 51, 78, 224 ‘nested institutions’ 20–21, 23, 38, 43, 45, 52, 56, 59, 62 New York Climate Week 208 New York People’s Climate March 208–9 New Zealand 33, 37, 49, 66 non-Anthropocentric ethic in Anthropocene epoch 143–53 non-anthropocentrism, approaches to 145–6 non-discrimination 180, 187–8 non-economic human rights 217 non-economic losses 7, 213–17, 221, 224 non-environmental attitudes 146 non-government organizations 3, 6, 45, 57, 66, 101, 182, 203, 221, 232 Nordhaus, William 199 OAS 218 objective moral stance 227 Observer States 47 OECD 47 OHCHR 67–8, 182

Index options for mitigation in the form of mitigation targets 41, 103, 134 Ora, Christina 194 Organisation for Economic Cooperation and Development see OECD Organization of American States, see OAS organizations 17–19, 23, 25, 27, 49–50, 52–3, 56–8, 65–6, 69–71, 77, 79, 127, 132, 135–7, 183, 201, 226, 235 academic 47 accredited observer 38 civil society 103, 124 intergovernmental 45, 221 multilateral 96 municipal 47 single dedicated 136 ‘Oslo Principles’ 232 Ostrom, Elinor 6, 131, 134, 236 Ostrom, Vincent 134–5, 137 over-consumerism 147–8 over-consumption 148–9 Overheated 199 Oxfam 183, 183n21 Oxford University 200 Ozone layer 36, 135 Page, Edward A. 12, 90n6, 98 Panel and Appellate Body decisions 78, 80–81 Paris Agreement 97, 183 Paris Climate Conference 94, 182–3, 195, 198, 207 Parties to the Convention see CMP ‘Patents for Humanity’ 197 Pedersen, Ole 186 The People’s Climate March 208–9 per capita consumption 223 per capita emissions 71, 91, 100, 123 philosophy of business ethics 158 concepts of the licence to operate 158 corporate social responsibility 158 Earth Charter 158 Equator Principles 158 ISO 4000 158 socially responsible investment 158 triple bottom line reporting 158 UN Global Compact 158 United nations-supported Principles for Responsible Investment 158 Pickering, Jonathan 6, 89–104 PIJ 5, 17–22, 24–7, 31, 33–4, 37–41, 46–7, 52–3, 61–2, 73–4, 81–4, 89–90, 126–7, 131–3, 136–8, 176, 186–8, 223–4 individual 136

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institutions 26, 89, 95 nation’s 62 organization’s 79 over-arching 136 particular 136–7 of regime 35 sub-institution’s 20 Pizer, William 91 Plimer, Ian 176 policies 3–4, 57, 61, 63–4, 69–70, 73–7, 79–80, 85, 92, 95, 100–101, 115, 120–21, 127–9, 147, 162, 199, 206–7 adopted fossil fuel divestment 200 broad-based redistribution 127 climate-related 132 customized regulatory 127 domestic 130 economic 134 formation of 61 global 231 institutional 73, 128 international 124, 193, 213 monitored 115 national 62, 66–8, 133 protectionist 75–6 state-based 126, 128 policy interpretation of CBDR 32, 36–9, 42 policy-makers 61, 65, 103, 105, 115–16, 142, 192–3 politics 6, 9, 120, 130, 146, 150, 165, 224 adaptive 206 climate 191 influence transnational 100 levers of 6 of resentment 150 polluters 10, 12–15, 132, 165, 223, 233 approach rewards 160 forward-looking 13 major 11 potential 15 punishing of 152 single 12 pollution 12–14, 26, 160, 233 chemical 144 costs of 12 polycentric agents 138 polycentric systems 131, 133–8 addressing climate change from the bottom-up 136 emerging 133–4, 137 trans-national 138 Popovski, Vesselin 3–15, 141, 141–53, 229 pragmatic perspectives 236 pragmatism 120

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Ethical Values and the Integrity of the Climate Change Regime

Pragmatism 168 pragmatism, principles of 120 principles of climate ethics 7 pro-environmental attitudes 146 procedural equity 90, 92, 94–6, 98–9, 103–4 dimension of 96, 99 evaluation of 92 procedural perspectives 233–4, 236 processes 19, 31, 33–4, 36, 38, 96, 98–9, 114–15, 118, 120, 122, 130, 132–3, 187–8, 194–5, 199–200, 228, 234 bureaucratic 217 of colonization and industrialization 31 coordinated 104 diffuse 231 discursive 228 ecological 144 environmental 144 hybrid 100 independent 174 linear 104 official 234 ongoing 115 reporting 57, 68 slow-onset 214, 226 transparent 116 projects 3, 25, 45–6, 57, 65–7, 151, 194, 228 emission-reduction 23, 46 international normative 7 promotion of climate ethics 236 property rights 156, 160 emissions trading institutionalizes 14 intellectual 197–8 Protection of Human Rights and Fundamental Freedoms 219 public institutional justification see PIJ public policy 91 publications 40, 67, 73, 79, 83, 182, 197 Achieving Justice and Human Rights in an Era of Climate Disruption 208 Concepts of Epistemic Justification 169 Everybody Matters: My Life Giving Voice 189 Garnaut Review 102, 173 Green Governance 206 Heat 153 Justice for Future Generations 206 Nature’s Trust 206 Overheated 199 Pragmatism 168 The Theory of Moral Sentiments 165 Wealth of Nations 165 The Wisdom of Crowds 174

Ransome, William 159 Rawls, John 9, 120, 226, 228 Raz, Joseph 125 reciprocity 82, 98, 131, 135, 137 reciprocity-based accounts of justice 121 reclaimed territory (‘artificial’) 220 REDD 44–5, 47, 51–4, 56–7, 59, 181 Reducing Emissions from Deforestation and Forest Degradation see REDD reductions 10, 42, 71, 75, 131, 134–5 global carbon 114 supporting carbon 107 refugees 112, 208, 217 Iraqi 112 Syrian 112 Regional Greenhouse Gas Initiative see RGGI regulations 14, 18–19, 77, 80, 107, 132, 148, 151, 157 domestic 80 legal 156 special 217 religious institutions 200 renegotiations 44, 111 reports 46, 66, 68, 83, 92, 100, 103–4, 181 Brundtland Report 78 Declaration of Climate Justice (2013) 7 Declaration on Climate Justice 7, 190–91, 195–6, 199, 203–4, 207, 210–11 Fifth Assessment Report (AR5) of the IPCC 92, 100 Fourth Assessment Report (AR4) of the Intergovernmental Panel on Climate Change (IPCC) 33 Fourth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (1963) 219 Garnaut Review of Australia’s climate change policy 102 research 3, 45, 47, 49, 61, 64–7, 101, 103, 116, 135, 143, 146–7, 193, 197, 217, 236 economic 129 institutions 192 methods and results 49 world bank policy 109 responsibilities 13, 15, 65–7, 69, 71, 82, 91, 93, 105–6, 117–18, 126, 151–2, 155, 162, 164, 193–4, 210, 222–4 allocating 206 causal 106 civil 114 environmental 147 extraterritorial 203 global 66 historic 122

Index of leaders 210 primary 205 results 20, 22–3, 42–3, 48–9, 52–3, 56, 64–5, 67, 74–5, 133–4, 136, 151–2, 186, 188–9, 191, 230–31, 234, 236 best 41 biasing 56 collective 77 final 134 of interviewee perspectives 54 mediated 233 positive 56 review mechanisms 99, 101, 235 review of mitigation contributions 96 RGGI 134 right of participation and access to information 188 right to nationality 218 right to self-determination 220 rights and responsibilities of UN membership 106 rights of indigenous peoples 59, 181 Rimmer, Matthew 189–211 Rio Declaration 8, 12–13 risks 8, 10, 15, 34, 70, 75, 80, 103, 107–9, 111–12, 149– 50, 156, 160, 181, 186–7, 199, 202, 215–16 climate-related 109 currency 155–6 economic 199 gauging of 109 high hydro-political 117 managing climate 202–3 relative 109 of slow-onset events 215 risks climate-related 124, 202 ‘The Risky Business Project’ 199 Risse, Thomas 236 Robinson, Mary 7, 189–90, 192–202, 204–5, 207–10 former Irish President 200, 209 humanistic vision 191 work on climate justice and ethics 191 Roht-Arriaza, Naomi 186–7 Ruhl, John B. 116 Russell, Bertrand 168–70, 173 Russian Federation 37, 48–9, 57, 66 Saba, Alina 194 safe global emissions 62–3, 65–6, 69–71 Salzman, James 116 Sampford, Charles 3, 6, 17–18, 20, 41, 74, 91, 126, 142, 155, 155–65 San Francisco 200 Sandel, Michael J. 15, 123 Sandin, Per 8, 121

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Saul, Ben 219 SBGSTA 44, 51 SBI 44 SBSTA 44, 51 Schematic outline of the climate regime 44 Schwenkenbecher, Anne 5–6, 10, 131–8 Scientific Body for Scientific and Technical Advice see SBGSTA Second World War 76, 106, 226 Sen, Amartya 222 Shermer, Michael 171 Shue, Henry 12–13, 191, 204 SIDS 42, 48, 112, 116, 181–2, 209, 214, 224 Simonelli, Andrea C. 7, 213–24 Small Island Developing States see SIDS Smith, Adam 164–5 social science tools and methods 146 socially responsible investment 158 societies 6, 9, 108, 110, 113, 117–18, 121, 123–7, 130, 142, 151, 153, 163, 190, 201, 204, 216 affected 116 civil 68, 89, 100, 104, 143, 192 climate-resilient 210 dangers 151 male-dominated 147 non-western 121 prosperous 109 sustainable 196, 211 twenty-first century 112 ‘soft’ law 142, 151, 229 South Africa 32, 49, 66 and China 49 and Indonesia 94 sovereign rights 33, 157 sovereign states 4, 6, 157, 217 stabilizing atmospheric carbon dioxide 33, 113 Stanford University 200 States Parties 220 ‘stationarity’ concept of 110 Stoermer, Eugene 143 strategy for increasing national responses to climate change on the basis of ethics and justice 68 sub-institutions 3, 20–21, 23, 27, 43, 45, 52–3, 56, 59, 136 illustrative 21 nested 23 scientific 176 UN-REDD and FCPF 56 subjective probabilities 169–70 Subsidiary Body for Implementation see SBI subsidies 128, 148 distorting the market 202

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Ethical Values and the Integrity of the Climate Change Regime

fossil fuel 202 kerosene 128 loss of 148 summary of results of interviewee perspectives on the integrity of UNFCCC and its institutional subcomponents 54 Surowiecki, James 174 sustainability 58, 74, 89, 144–8, 152–3, 196 achieving of 196 agents of 146 apparatus of governing societies 127 concern for 57 economic 34 environmental 78–9 ethics 147–8 ‘trumping development’ 233 values of 74 sustainable development 7–8, 35, 39–40, 47, 74, 77–9, 83, 85, 98, 121, 128, 183, 189, 195–6, 201, 206–7 inclusive 196, 201 particular 81 pathway 40 Sustainable Development Mechanisms Program 57 Syria and Syrians 50, 112–13 targets 23, 33, 38–41, 46, 62, 64, 66–7, 70–71, 84, 94, 97, 101–3, 107, 133–4, 162 adjusting national GHG 71 agreed combined 107 collective 97 emission reduction 23, 46, 66 emissions 63–4, 69–71, 84, 102, 133, 162 national 40, 63, 65 national GHG emission-reduction 69 post-2020 103 quantified 101 regional GHG emissions reductions 64 Task Force Bureau see TFB TEC 46 technologies 39, 196–8, 220, 230–32, 235 high-emission 31 low-carbon 196, 198–9 low-emission 31 sound 48, 198 Technology Executive Committee see TEC territory 129, 185, 216, 218–22 defined 218 national 219 of nationality 219 new 221 relocated 222

sovereign 217 submerged 219, 222 TFB 56 theories 3, 6, 74, 82, 85, 90, 116, 119–20, 146, 156, 161–2, 204, 225, 227, 231 applying singular over-arching 5 classical development 147 of climate justice 6 comprehensive global 35 contemporary 227 deliberative 228 economic 74, 84 full-scale 232 international relations 143 The Theory of Moral Sentiments 165 top-down debates 94 top-down proposals 4, 38–9, 89–103 accountability 91 approaches 40–41, 90–94, 97–8, 136 conjunctive 98 distributive equity of 93 expert analysis of 100 features of 97 formulaic aspect of 99 functions of 102 individual 98 influences of 100, 103 limitations of 102–3 role of 99 selection of 102 shortcomings of 91 subject to proper scrutiny 98 theories of 6 translation problems 92 treaties 3, 31, 37, 68, 77, 91, 123, 132, 150–51, 213, 226, 228–9, 237 economic 3 environmental 31 global 135 international 134, 150, 229 triple bottom line reporting 158 tsunami and eaethquakes 152 Tuvalu 182, 217 UFCCC, decision texts becoming ‘gender aware’ 194 UG 48–9 UK 50, 91–2, 98, 100–102, 111, 114, 132, 167, 175, 197, 201, 206 Committee on Climate Change 102 Government 102 Ukraine 22, 37, 49, 150 ‘Umbrella Group’ see UG

Index UN Climate Conference Paris (2015) 94 UN-REDD 47, 51–2, 57 UNClOS 219 UNDP 47, 51–2, 56, 181 UNEP 8, 40, 47, 51–2, 55–6, 59, 108, 132, 197 and UNFCCC 52 UNESCO 114–15, 230, 232 UNFCCC 3–5, 21–5, 31–8, 43–5, 47–9, 51–6, 63–4, 68–71, 82–5, 89, 91–4, 97–100, 107, 131–3, 182–3, 203–5, 213–16, 223–4 actions 23 climate agreement 213 climate negotiations 210 climate regime 22–3, 45, 132–4 coherence-integrity 21, 23, 25 context impacts on its capacity to operate effectively 23 institutional coherence of 127 and Kyoto II mechanisms 134 members require values and interests that are broadly congruent with the UNFCCC’s PIJ 21 negotiating documents 51–2, 222 negotiations and decisions 32, 222, 224, 232 PIJ 21, 23, 132–3 principles and ongoing scientific and COP developments since 1992 21 processes 32, 222 terminology 89 UNHCR 112–13, 221 UNHRC 181–2, 221 UNISDR 144 United Nations 8, 21, 23, 32, 34, 68, 76, 78, 106–7, 114, 180, 186–7, 194, 203, 205, 207, 209–10, 217–20 rights and responsibilities of 106 United Nations Climate Summit 191, 208–10 United Nations Committee for Development Policy see CDP United Nations Convention on the law of the Seas see UNClOS United Nations Development Programme see UNDP United Nations documents on the environment 8 United Nations Educational, Scientific and Cultural Organization see UNESCO United Nations Environment Programme, see UNEP United nations Framework Convention on Climate Change see UNFCCC United Nations Global Compact 158 United Nations High Commissioner for Human Rights 7, 205 United Nations Human Rights Council, see UNHRC United Nations Member States 227

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United Nations Millennium Development Goals 114 United Nations Office for Disaster Risk Reduction see UNISDR United Nations Office for the High Commission of Human Rights 221–2 United Nations Office of the High Commissioner for Human Rights see OHCHR United Nations Security Council 79 United Nations Special Envoy on Climate Change 191 United Nations Supported Principles for Responsible Investment 158 United Nations Universal Declaration of Human Rights (1948) 190, 218, 225–6, 229, 232, 235, 237 United States see US universities 200–201 Australian National University 89, 200 Glasgow University 200 Stanford University 200 Victoria University of Wellington]200 UNPRI 158, 164 ‘Uruguay Round’ of negotiations 77 US 32–3, 35, 37, 49–50, 57, 66–7, 69, 76–81, 83, 93, 117, 123, 134–5, 157, 182, 199, 201, 222 US, Conference of Mayors’ Climate Protection Agreement 134 US, state-level efforts 134 US, Undersecretary of State 76 US Conference of Mayors’ Climate Protection Agreement 134 US–Shrimp 78, 80, 82 value added tax, see VAT value systems 119, 145 values 5–6, 17–19, 25–7, 73–5, 77–9, 81–6, 106–7, 111–13, 127, 130–32, 141–2, 149–50, 155–9, 163–5, 167, 175–6, 187–8, 225–6 applying ethical 5 cultural 116, 149 economic 149 egocentric 141–2, 144 environmental 80–81, 235 financial 84 independent 95 individualist 6 liberal 150 monetary 14 negative 150 positive 7, 150 procedural 90, 95 scientific 176 shared 57

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spiritual 148 substantive 95 underpinning 73 VAT 161–2 VCS 58 Victoria University of Wellington 200 voluntary carbon standards see VCS voluntary mitigation commitments 132 Waldron, Jeremy 227 Warsaw 124, 215, 223 Warsaw International Mechanism, see WIM Washington DC 124 water 43, 110, 112, 116, 144, 147–8, 172, 179–82, 192, 204, 219–20 availability 117 bottled 220 engineers 109 heaters 135 shortages 144 supplies 62, 181 trading 156 usage rights 160–61 Wealth of Nations 165 weather events 108, 110–11, 117, 180 Weston, Burns 206 Westphalian principles 124 White, Lynn 146 WIM 45, 215, 217, 219, 222–4 values and goals 224 work plan 221, 223

The Wisdom of Crowds 174 WMO 216 women leaders on gender and climate change 193, 195 Wong, Derek 218 Wood, Mary Christina 206 workshops 3, 89, 98, 158, 214 Climate Integrity Workshop 176 Towards Global Carbon Integrity: Applying Integrity System Methodology to the Global Carbon Crisis 3 World Bank 24, 46, 57, 67, 76, 109 World Development Bank 216 World Meteorological Organization see WMO World Trade Organization see WTO World Wildlife Fund 183n21 Worldwide Governance Indicators 109 WTO 5, 22–3, 73–86, 107 Agreement Preamble 82–3 Agreements 77–80, 82, 85 decisions 74 disputes 82 exception provisions 79 jurisprudence 79 WTO, Law 75, 77–8, 80, 219 WTO members 77 obligations 80 requirement to adhere to ‘special economic needs of developing countries’ 82 rules recognize the need for cooperation in environmental objectives 83